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Deborah Charles Publications
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Richard W. Barker, "Unborn children and child protection - legal, policy and practice issues", in "Social Work Law: an Interface for Policy and Practice Development", Liverpool Law Review XIX/2 (1997), 219-229: This paper examines some of the procedural, practice and legal issues that arise in relation to child protection and unborn children. It considers the official guidance on such interventions, and suggests that whilst the law limits interventions, the guidance issued under 'Working Together' expects agencies to monitor unborn children without having regard to the complexities of the law. It is shown that the legal position is much more complex than the guidance indicates. Particular areas then considered are the legal position of the unborn fetus, the law in relation to parental rights, and the law in relation to termination of pregnancy. Some statistical evidence is provided to show the incidence of registration on child protection registers of unborn children and how unborn children's cases are handled very differently in different areas of England, the article concludes with suggestions for clarifications and improvements in the guidelines in 'Working Together' to reflect the complexities of child protection work with cases where unborn children are a feature. e-mail: rwbarker@unn.ac.uk

Jürgen Beier, "The Woolf Report and German Civil Procedure", The Liverpool Law Review Vol. xix no.1 (1997), 67-88. - There have always been reasons for neighbouring (and sometimes distant) countries to examine each other's legal systems. Membership of the European Union gives to the mutual examination of members' systems a particular significance, bearing in mind the increasing role of EC law throughout the Union, and of those forces tending towards the convergence of legal systems within the Union. This article sees Lord Woolf's report on "Access to Justice" as part of this broader European process, cross-referring as it does to certain details of German law and of other systems foreign to England and Wales, but in turn forming part of the general European legal culture which those responsible for the legal systems of the various member states would be neglectful to ignore. As to Germany on the one hand and England and Wales on the other, many common problems and some common solutions are observed, notwithstanding the very distinct judicial traditions concerned. e-mail: pamadajo@inanimus.in-berlin.de

Alice Belcher, "Gendered Company: Views of Corporate Governance at the Institute of Directors", Feminist Legal Studies V/1 (1997), 57-76: On 24 October 1995 the Institute of Directors held a conference on "Enterprise and Governance." This article uses the author's personal experience as a woman delegate to make connections between feminist theories and issues in corporate governance. The article has two principal parts. Firstly, there is a personal narrative told simply as a consciousness-raising exercise. Secondly, there is an analysis which sets recent developments in corporate legal theory (in particular) and the corporate governance debate (more generally) within the context of theories concerning gender construction. It opens with a quotation from the credo of the Institute of Directors: "The success of companies depends on the leadership and performance of directors." It concludes that the performance of the group of male directors at the "Enterprise and Governance" conference revealed patriarchal ideology exercising hegemonic control of the corporate culture and strongly resisting any challenges to its dominant position. Alice Belcher is Senior Lecturer in Law, Department of Law, University of Dundee, Dundee, DD1 4HN.

Richard Bellamy, "Liberal Politics and the Judiciary: the Supreme Court and American Democracy", Res Publica III/1 (1997), 91-106: This article reviews the a number of different accounts of the practice of judicial review within the American Constitution. Michael Sandel and Cass Sunstein both offer a republican critique of the predominant liberal view of the Court as upholding a neutral framework of rights against possible majority tyranny. Robert McKeever lends some of their criticisms empirical support, noting how the Court itself has been if anything overly swayed by populist opinions. John Arthur, by contrast, defends the liberal position. The author concludes that whilst certain of the republican criticisms are overstated, particularly those of Sandel, we do require a more political account of the constitution that incorporates liberal principles into the very mechanisms of democracy rather than relying on the deus ex machina of judges. This approach offers more effective protection for rights and places them in a broader social context than the courts can. It also ensures decisions have the active support of those who must implement them. e-mail: r.p.bellamy@reading.ac.uk

Michêle L. Bergeron, "Hegemony, Law and Psychiatry: A Perspective on the Systemic Oppression of "Rogue Mothers" in In re Aaron S", Feminist Legal Studies IV/1 (1996), 49-72: The author deconstructs the law-related experience of a single mother ostensibly suffering from Munchausen Syndrome by Proxy. That the institutionalized violence of law are the misogyny of psychiatry can operate to establish, maintain and constantly re-affirm the hegemonic condition of female dependence, gender inequality and compulsory heterosexuality is evidenced by this single mother's experience {n In re Aaron S. The author contends that In re Aaron S. is an instance of the state recognizing a hegemonic crisis, namely the subversive potential of "rogue mothers", and responding to the perceived crisis, through the operation of the state apparatuses of law and psychiatry, with violence and coercion.

David Berry, "Interpreting Rights and Culture: Extending Law's Empire", Res Publica IV/1 (1998), 3-28: This paper takes up the problem of conflicts between traditional cultures and international human rights, and argues that the current strategy of expanding the meanings of both "culture" and "rights" takes up only part of the way towards a solution. What is needed is a bridging mechanism, one that will relate these differing conceptions and help adjudicate their conflicts. Interpretive theories offer one such mechanism, and this paper applies Ronald Dworkin's theory of legal interpretation to this area. Since this is new ground for Dworkin and is not specifically dealt with in Law's Empire, several weaknesses appear in his interpretive approach. But these can be corrected by bringing other perspectives into play, such as the recent, more nuanced, universalist arguments in favour of human rights. By interpreting both culture and rights purposively, towards human dignity, we can bring to bear a powerful and sophisticated approach for resolving these conflicts. e-mail:David.Berry@uwichill.edu.bb

Faye Boland, "Psychiatric Injury and Assault. The Immediate Effect of R v. Ireland, R v. Burstow", Liverpool Law Review XIX/2 (1997), 231-239: An examination of the House of Lords decision R v Ireland, R v Burstow [1997] 2 W.L.R.534 which has considered the application of the Offences Against the Person Act 1861 to the stalker or malicious caller who causes psychiatric injury. The decision also clarifies the meaning of assault at common law. e-mail: F.Boland@liverpool.ac.uk

Allen D. Boyer, "Sir Edward Coke, Ciceronianus: "Classical Rhetoric and the Common Law Tradition", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique Vol.X no.28 (1997), 3-36. This article discusses Sir Edward Coke and how his training in Ciceronian rhetoric shaped his work as a judge and his writings on the common law. It also discusses the close connection which existed between the discourse arts and the common law during the Elizabethan age. Common lawyers, trained in the humanist tradition, studied Latin works of oratory (most notably, those of Cicero). Legal practice, legal education, and the emerging case method reflected rhetorical models. The rhetoricians' belief that oratory shaped society is the mirror image of the contemporary belief that social patterns are texts which can be read through semiotics, and their equation of eloquence with life draws the same connection as the modern connection of law and society. As a matter of legal history, Coke's background in rhetoric laid the foundation for his Reports and his Institutes, including his magisterial Commentary upon Littleton. As a matter of jurisprudence, it taught Coke and other Tudor judges to weigh public policy in deciding cases. In the area of constitutional law, the way in which the rhetoricians privileged their art may have inspired Coke's doctrine of judicial review. (e-mail: aboyer@corpmail.corpnet.nyse.com)

Bob Brecher, 'Rorty through the looking-glass', Res Publica III/1 (1997), 113-22: In this review of Norman Geras's, Solidarity in the Conversation of Humankind (London, Verso, 1995) I argue that the main force of his superbly coruscating critique of Richard Rorty is to show the interconnectedness of questions of epistemology and morality. 'If there is no truth, there is no injustice', as he puts it. Iconoclastic but ultimately conservative, postmodernism merely projects empiricism's subjectivism onto the wide screen of contemporary relativism: Hume without grounds, so to speak. Its professed tolerance is thoroughly self-defeating, as Geras elegantly but remorselessly demonstrates in the course of his discussion of Rorty's claims about what motivated the rescuers of Jews in Nazi-occupied Europe (ch.1); the nature of 'human nature' (ch. 2); the relation of 'community' to universal values and claims (ch. 3); and the inter-relations of language, truth and justice (ch. 4). In particular, Rorty's version of anti-foundationalism, nuanced and sophisticated though it is, is peppered with contradiction. How, for instance, can he claim both that cruelty is 'the worst thing we do' and that 'there is no way to "refute" a ... Nazi'? Whatever one's estimate of Geras's own ethical anti-naturalism, Rorty's seductive counter that we cease to differentiate between 'rational judgement' and 'cultural bias' is morally, no less than philosophically, bankrupt. e-mail: R.Brecher@bton.ac.uk

Bob Brecher, "The Moronic Inferno" (Review of Alison Assiter, Enlightened Women: Modernist Feminism in a Postmodern Age), Res Publica IV/2 (1998), 241-250: Assiter's welcome attack on postmodernism - a defence of Enlightenment realism in the theory of meaning, universalism in feminist theory and the value of basic distinctions between truth and opinion - is both timely and well directed. Having no truck with the "disappearance of the subject", whether philosophically or politically, she offers the beginnings of a minimalist essentialism which night be hoped to have application not only for feminism but for political philosophy more generally. e-mail: R.Brecher@bton.ac.uk

Denis Brion, "The Ideology of Constitutional Meaning", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique Vol. X no.29 (1997), 159-190: A remarkable element of the highly contested matter of constitutional interpretation by the United States Supreme Court is its body of decisions in which it finds an unexpressed individual right in the "penumbras" or "interstices" of the express language of the Bill of Rights. A salient example is the Court's decision in 1965 in Griswold v. Connecticut, in which it struck down a State anti-contraception statute on the basis that it violated a "penumbral" right of privacy. In support of this result, Justice William O. Douglas explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." In consequence, the Court was criticised for violating the Rule of Law mandate that its role is to apply the law and not create it. A way of approaching the question whether this criticism is valid is to consider the cosmological categories of Firstness, Secondness, and Thirdness of the American pragmatist philosopher Charles Sanders Peirce and his triadic concept of the linguistic sign, and the emotional basis for the genesis of values argued for by Peirce's philosophical compatriot, William James. Taken together, these elements of pragmatist philosophy advance the position that what is unique about humans is the matrix of meaning by which we understand reality; humans inhabit a triadic world of meaning in conjunction with the dyadic milieu of fact that is the basic characteristic of all other organisms. In the understanding of this triadic world of meaning that pragmatism provides, what the Supreme Court did by way of finding a penumbral right of privacy is altogether unremarkable - Justice Douglas was doing no more than describing with accurate succinctness the necessary process by which the inhabitant of a triadic world imbues a text with meaning. e-mail:DJB@fs.law.wlu.edu

Denis Brion, "The Hidden Persistence of Witchcraft", Law and Critique Vol. IV no.2 (1993), 227-252: Recently in the United States, there has been a near-epidemic of prosecutions of individuals for engaging in the organized and repeated sexual abuse of young children through the medium of Satanic rituals. Day care centers are the usual scene for these alleged activities. The typical course of these episodes begins with the revelation of a bizarre pattern of abuse, followed by highly emotional community reaction, trial, finding of guilt, and then, on review, the reversal of the conviction as having been based on wholly false evidence and testimony. In their unfolding of events and denouement, these episodes strongly resemble the tragic prosecutions for witchcraft in Salem, Massachusetts in the 1690s. An understanding the genesis of the Salem Witchcraft episode provides a way of understanding the genesis of these latter-day Satanic sexual abuse episodes. The scheme of social cosmologies developed by the anthropologist Mary Douglas tells us that these episodes of false accusation and prosecution are the entirely expectable response of a psychic community experiencing a threat to its cohesiveness. Thus, the holder of a communitarian cosmology will tend to understand a threatening outsider in terms of thoroughgoing evil; although the acts of which the outsider is accused of committing did not in fact occur, the individual holds an unshakable belief that they did occur. Although the accused in these episodes ultimately are vindicated, they typically experience psychological and economic devastation, a harm for which, because of the strong tradition in United States law of prosecutorial immunity, there is no redress. The falsely accused thereby are "crimeless victims". The anthropological understanding of the genesis of these false accusations exposes a considerable weakness in the processes by which the criminal process is initiated and carried out, a weakness that can be remedied by a modified approach to the matter of prosecutorial immunity. e-mail: DJB@fs.law.wlu.edu



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