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Deborah Charles Publications
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Tibor Machan, "Does Libertarianism Imply the Welfare State?", Res Publica III/2 (1997), 131-148: Classical liberal or libertarian polity champions negative liberty as the primary public good, yet some - most notably James P. Sterba - have argued that this is misleading. In fact, it is maintained, since negative liberty is defended on grounds that it serves the purpose of enabling citizens - by ridding them of intentional coercion by others - to pursue their flourishing or happiness, if they are economically or otherwise incapable of acting for this goal, such negative liberty is of no value to them. Thus before they can be expected to reasonably defend negative liberty, they require, also, a measure of positive freedom - i.e., some provisions that will enable them to take advantage of such negative liberty..In the present essay Tibor Machan examines the more recent development of this argument and argues that it is flawed because it confuses a moral point that is sound - namely, that in emergency situations taking provisions from another may bee the right thing to do - with a political point that is unsound - namely, having the basic right to taking provisions from others. The reasoning invoked to move from the moral to the political is, Machan argues, invalid. So, in fact, classical liberalism or libertarianism does not lend support to the welfare state. e-mail: Tibor_R._Machan@link.freedom.com


William MacNeil, "Law's Corpus Delicti: The Fantasmatic Body of Rights Discourse", Law and Critique IX/1 (1998), 37-57: This article poses the question "where is the body of rights?". So the project here is very different from, for example, critical legal, feminist or race theorists who would ask "whose body lies behind rights?". For this article eschews their determinate answers (of either the white, bourgeois patriarch or of commands, rules, norms) in favour of an indeterminacy which would locate the body of rights discourse as everywhere and nowhere, tracing each position but coming to rest over neither. This doubleness informs, and indeed enables the claims of rights discourse to be in everybody generally but nobody in particular. How this rhetorical contradiction is sustained - as everywhere and nowhere, as well as different and identical, even present and absent - will be explained in terms of the Lacanian formula for fantasy. This formula provides, this article argues, a blueprint to the "legal unconscious", mapping its cadastres, fixing its boundaries. But more than that, this formula may provide a new direction out of the current impasses which afflict rights discourse (is it a symptom or solution to the ills which afflict the body politic?), enabling critique to reclaim it as its own. This article concludes by arguing for such a reclamation, one which avoids the deadend of modernity: of both the fetishistic espousal of rights by liberalism or their sceptical denial by critical legal studies et. al. Where then the fantasmatic body of rights - which this article calls Law's corpus delicti - leads jurisprudence is towards a postmodern theory of rights. e-mail: WMACNEIL@hkucc.hku.hk

Norman Markel, "A Semiotic Contribution to Libel Action Law", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique Vol. XI no.31 (1998), 49-56: Four words in a newspaper article gave rise to a libel action against the newspaper that published the article and the reporter who wrote it. In preparing their case, attorneys for the newspaper requested the opinion of the author, who applied semiotic concepts to operationally define the legal terms defamatory and false. By applying semantic and pragmatic principles the author developed a Fairness-Test and an Accuracy-Test that provide objective methods for determining whether or not a report of a written document is fair and accurate. Addresss: Department of Communication Sciences, University of Florida, Gainesville, FL USA, markel@csd.ufl.edu

Angus McDonald, "The New Beauty of a Sum of Possibilities", Law and Critique VIII/2 (1997), 141-159: This paper argues for the continuing significance of the critique of urbanism advanced by the Situationist International. The city, or more abstractly, the urban, is located as the site of a struggle between coerced order and anarchy, exemplified in five brief investigations. The opinion of the Scottish enlightenment figure, Lord Kames, that the city is an evil, is contrasted with the view of Roland Barthes that the city be considered as poetic, ludic and erotic. The analysis of Venice and Thomas More's Amaurot, capital city of Utopia, advanced by Lewis Mumford is employed to clarify an idealism and a materialism of the city. The Situationist critique of the city, particularly the work of Guy Debord, is identified as establishing the concepts of the quotidian or everyday life, the urban, and psychogeography, as developments out of the project of surrealism. What the Situationists struggled against was a city of domestication, pacification and suburbanisation, exemplified in the language of Athenian tragedy by the fate of the Furies, the Eumenides in the Oresteia, who surrender their passion to the order of law, thereby stabilising the community identity. The vitality of the Situationist perspective is proposed, against efforts to consign it to history.

Graham McFee, "Interrogating Philosophy?" (Review of Roger Scruton, Modern Philosophy: An Introduction and Survey and Roy Bhaskar Plato Etc.: The Problems of Philosophy and their Resolution) Res Publica III/2 (1997), 239-246: This is a review article, treating Roger Scruton, Modern Philosophy: An Introduction and Survey (London: Sinclair-Stevenson, 1994) and Roy Bhaskar, Plato Etc.: The Problems of Philosophy and Their Resolution (London: Verso, 1994). It urges that Scruton's text represents an accurate description of the spirit of philosophical enquiry; and also of the issues that exercise it. Particularly rewarding is the combination of straight-forward treatments of key issues and a study-guide, with exercises, references and a critical commentary on texts referred to. In contrast, Bhaskar's book is one part of a general many-volume project, articulating what Bhaskar has called "dialectical critical realism". The text includes promises of arguments in forthcoming volumes. For this reason, philosophers who find his way of proceeding enlightening would be advised to wait for the publication of all the volumes of Bhaskar's project: then, at least, they can survey all of the 'hard ground'.

Clare McGlynn, "Pregnancy Dismissals and the Webb Litigation", Feminist Legal Studies Vol IV/2 [1996], 229-242: Can a woman be dismissed from employment on the grounds of pregnancy under English and European law? This is the question considered in the Webb litigation, which spanned eight years, with the final judgment that such a dismissal does constitute unlawful sex discrimination. This article examines the clear reluctance of the courts to grant protection from dismissal to pregnant women, preferring the economic arguments of business, and considers the statistics showing that it is upon pregnancy and childbirth that women are increasingly facing discrimination in the workplace. The article concludes that the advances so far gained in relation to pregnancy dismissals, do not yet reflect a cultural shift in attitudes and that consequently vigilance and continued campaigning is required to improve the real situation of women in the workplace.
Author's address: Clare McGlynn, Newcastle Law School, University of Newcastle upon Tyne, Newcastle upon Tyne NE1 7RU; e-mail: Clare.McGlynn@ncl.ac.uk

James T. McHugh, "Traumatic Developments: Contractual Theory of Rape In America", Feminist Legal Studies Vol III/2 [1995], 237-247: The Pennsylvania Supreme Court's 1994 affirmation of a 1992 Pennsylvania Superior Court's appellate ruling in the case of Commonwealth of Pennsylvania vs. Robert A. Berkowitz provides a stunning confirmation of the applicability of "sexual contract" theory to an actual judicial system. Berkowitz's conviction of rape was overturned, despite the fact that the survivor repeatedly said "no" throughout the incident. The courts ruled that Pennsylvania law decrees that rape occurs in the absence of "forcible compulsion." The courts determined that the fact that the survivor resisted verbally, but not physically, indicated a lack of such "compulsion" and implying the survivor's willingness to engage in this sexual "transaction." This case is noteworthy because of the way that it reveals that Pennsylvania' s rape statute (as well as similar statutes in many other American states) treats this crime in such a manner that its principles appear to be drawn from the common law of contracts and the federal Uniform Commercial Code, rather than from criminal law and state criminal codes. It provides, therefore, a uniquely vivid substantiation of the body of scholarship (including the seminal works of Susan Brownmiller and Carol Pateman) that has asserted the presence of a "sexual contract" which male dominated societies have imposed upon their respective legal systems.

Madhu Mehra, "Exploring the Boundaries of Law, Gender and Social Reform", Feminist Legal Studies VI/1 (1998), 59-83: This article explores the relationship between law, gender and social reform through the legal discourse on dowry and domestic violence in India. Its principal sources are statutory and case law (from the High Court and the Supreme Court) on the criminal side between 1983 to 1996. The article argues for re-examining the centrality of law in the feminist struggle for social reform, in view of the inherent limitations and character of law. It examines the ways in which legal discourse reproduces traditional socialised constructions of both dowry and domestic violence, thereby legitimising a degree of the problem that was sought to be corrected through legal intervention in the first place. The process of intervening has also led to the construction of the socialised gendered woman in law. Upon this seemingly universal category of the gendered woman, the legal discourse has created different types of women based upon aspects of their identity in addition to gender. While some types of women are extolled as embodying the natural and ideal qualities of womanhood, thereby deserving of legal redress, there are other types who emerge as flawed when measured against the ideal woman, and therefore deprecated for abusing the process of the law. Feminist engagement with the law needs to be aware of the inherent power of law to appropriate to itself the authority of constructing the problem, in a way that largely parallels the socialised understanding and displaces the feminist and sociological versions of the problem; further, it must be aware that even progressive law cannot be uniformly liberatory for all women, as it treats different types of women differentially.

Paul Meredith, Senior Lecturer in Law, University of Southampton, UK, "The Changing Role of Local Education Authorities", in "Education Law", Liverpool Law Review XX/1 (1998), 41-62: This article discusses the changing role of local education authorities and their changing relationships with other partners in the provision of school education in England - in particular the Department for Education and Employment and individual school governing bodies - in the light of the new government's proposals for educational reform. The discussion focuses chiefly on the many proposals in the White Paper, Excellence in Schools, and the School Standards and Framework Bill for raising standards in education. Those proposals include many new functions for local education authorities, but also many powers of prescription, control and intervention for the Secretary of State. These new powers and functions will bring about significant shifts in the complex balance of power between the central department, local authorities and schools. The primary aim of the article is to analyse and evaluate the nature and scope of these new powers and functions and their implications for local authorities and their relationship with their other partners in the provision of education. e-mail: apkm@soton.ac.uk

G. Miller, "Owning Biotechnological Invention: Is There a Difference between Animate and Inanimate Property?", The Liverpool Law Review xv/2 (1993), 143-162: In this paper we examine some of the bases for owning animate and inanimate property with an eye to discovering where and how things, both old and new, are presently and have historically been owned. Because of the recent biotechnical breakthrough in developing and patenting animals and the probable and eventual development of genetically designed humans, we looked for dimensions of property that have served history. We look at some of the claims and flaws of the patent system, the law of trade secrets, and of trade marks. Original title to English real property and the relationship of serfs as indentured servants is contrasted to Roman and American slavery and the development of full political rights for animals as well as human property is examined. We look especially at wild animal ownership and note specifically that new animal species are forbidden to be introduced by English law. We look at the Roman law of juridical persons, their status, descent and the status and property of slaves including their offspring. We look at land, animal and slave usufructuary and finally at mancipation of sons and slaves in Roman law. We conclude with a look at some of the developmental problems associated with technology transfer to lesser developed countries and their attempt to put this debate on terms which will be beneficial to their economic progress.

Panu Minkkinen, "Pretexts", Law and Critique VIII/1 (1997), 61-69: The essay deals with two central books in contemporary French philosophy that address the issues of community and friendship: Maurice Blanchot's La Communauté Inavouable (1983) and Jacques Derrida's Politiques de l'Amitié (1994). The essay attempts to characterise the aporetic nature of law in community, the impossibility to establish community by way of law and, yet, the necessity of a law that accounts for the absolute singularity of the other. It is further suggested that this aporia of law observes the dual structure of a pretext: a preceding text as a prescription that orders, and a singular relation to the other that foreruns all texts. E-mail: MINKKINEN@otdk.helsinki.fi

Leslie J. Moran and Derek McGhee, "Perverting London: The Cartographic Practices of Law", Law and Critique IX/2 (1998), 207-224: This paper undertakes a reading of a report submitted by the then Commissioner of the Metropolitan Police to the Wolfenden Committee which was undertaking a review of the law and practice applicable to homosexual offences. The report contains a map of central London showing the distribution of encounters between the police and men who have sex with other men. The map provides an opportunity to examine the relation between law and space. Here law and legal practice are examined as practices of cartography. Using the work of Michel Foucault, de Certeau, historical material and material contemporary with the Wolfenden committee's review, the paper examines the institution of the police as an institution of space. Using recent writings in the fields of cultural and sexual geography, the paper examines the nature of space generated through the panoptic practice of policing. Using Bakhtin's theory of the carnivalesque, through an examination of plain clothes police operations in public toilets, the authors analyse the transformation of legal practices of policing in liminal space. e-mail: l.moran@law.bbk.ac.uk

Gillian C More, "Equal Treatment" of the Sexes in European Community Law: What does "Equal" Mean?, Feminist Legal Studies Vol.I. no.1 (1993), 45-74: This article considers the concept of "equal treatment" in E.C. sex equality cases, both as it is structured by E.C. Directive 76/207 and as it is applied by the European Court of Justice ("ECJ"). It is argued, using Catherine MacKinnon's early work, that the E.C. concept of equal treatment is formally structured around concepts of sameness and difference and is as such an androcentric version of equality. By reference to a number of cases, in particular those concerning maternity rights and positive action, the outlines the inadequacy and rigidity of the ECJ's approach to sex equality. The article concludes with a consideration of Canadian Charter of Rights and Freedoms jurisprudence in relation to sex equality: it suggests that it is possible for courts to approach sex equality from a different perspective and advocates that the ECJ reappraise its approach before the conservatism of its decisions becomes truly evident. Author's address: 74A Endymion Road, London SW2 2BT; E-mail: g.c.more@lse.ac.uk

Mary Jane Mossman, "Lawyers and Family Life: New Directions for the 1990's", Feminist Legal Studies II/1 (1994), 61-82 (Part I) and II/2 (1994), 159-182 (Part II): Overall, this paper examines the relationship between work and family responsibilities for men and (increasingly large numbers of women who are lawyers. Part I begins by examining the demographic data regarding women in paid employment in contemporary Canadian society, including the dramatic changes in the numbers of women who have entered the legal profession in recent decades. The Part also examines three related and "hidden" issues in relation to the dilemma of work and family for members of the legal profession: current arrangements for legal work, especially in large private law firms; gender bias in current roles of women and men in our society; and the scope of "familial" responsibilities (including responsibilities for children and elderly persons in traditional and other family units ). Part II explores a number of solutions that have been attempted as a means of creating more balance between work and family responsibilities. The paper reviews experiences with alternative work arrangements, as well as the need for more structural change. The paper concludes that real solutions depend on serious consideration of the processes of change and the need to ensure that all lawyers (women and men) may be productive members of the legal profession without relinquishing familial responsibilities.
Author's address: Mary Jane Mossman, Professor of Law, Osgoode Hall Law School, York University, 4700 Keele Street, North York, Ontario, Canada M3J lP3, Telephone: (416) 736-5547, Fax: (416) 736-5736, E-mail: mmossman@yorku.ca

Ann Mumford, "Leona Helmsley: The Construction of a Woman Tax Evader", Feminist Legal Studies V/2 (1997), 169-194: This paper addresses the legal and media construction of the infamous American tax evader, Leona Helmsley, from a perspective which argues for her consideration by feminist legal scholars. Helmsley presents the latest example of a feminine image which spurred the American tax collector to action, through the equation of consumption­plus­feminine equals "off with her head". "Feminine" refers to the discourse provided by, in the UK, scholars such as Kate Green, and, in the US, Handelman, such that traditional legal conceptualisations are politicised with the feminine voice. This paper advocates the inclusion of Helmsley in this politicisation process. This argument may be discomforting for feminist legal scholars, given the '1980s', consumerist symbolism Helmsley represents. Nonetheless, this uniquely unattractive aspect of the American "backlash" (Faludi) against feminism warrants consideration by British feminist legal scholars, if only to inform their reaction to the changing basis of their tax collection system. If a tax system for revenue only is a chimera (Kornhauser), the argument, particularly espoused in the confused reaction of US law reviews to Helmsley, that feminist legal scholars can afford to ignore her socio-legal treatment is equally capricious.

Teresa MUNBY, "Immigration, Nationality and Asylum Law for Social Workers", Liverpool Law Review XIX/2 (1997), 193-202: This paper considers the need to teach intending social workers about immigration, nationality and asylum legislation. It explores the benefits of doing so and then considers how it might be taught. The need to teach this area of law is premised on three arguments. Firstly, that social workers understanding of race, discrimination and anti-discriminatory practice will benefit from having an historical overview of the developments in immigration and nationality law in the UK. Secondly, that attempts by government to exclude asylum seekers from social security benefits and subsequent court decisions have brought local authority social services departments clearly into the frame for having financial responsibility for this client group. Thirdly, only with an understanding and knowledge of this legislation can social workers effectively work with and assist those clients for whom their immigration/nationality/asylum status maybe relevant when helping in related social welfare problems (of say benefits, housing, domestic violence and so on) through the social workers' increased understanding of the significance of immigration status upon such problems. The article then explores how this area of law can be taught and suggests three main areas of content covering: legislation, internal immigration control and detention. e-mail: tmunby@ruskin.ac.uk

Therese Murphy, "Feminism on Flesh", Law and Critique VIII/1 (1997), 37-59: At one time, gender seemed bound to sex. Things changed, however, when Woman appeared. Woman made it difficult to sustain the synonymity of the concepts because, in creating her, feminism took hold of "sex" and "ender" and cemented them into a binary pairing. For a time, Woman seemed multi-talented: she undermined dangerous biological determinism; she exposed the contingency of current gender arrangements; and she offered women a unitary political subject to whom the liberal state was willing to listen. But times change and Woman now stands accused of widespread and ill-considered essentialism. This paper zeros in on one of the allegations of essentialism which have been levelled against her: the fixation with gender and the void as regards the sexed body. Its starting point is that danger attaches to Woman's ongoing disregard of the need for an explicitly feminist theorisation of the body. It is concerned that sex or the body (or Nature or biology) continues to be a blind-spot in most feminist work. Using a recent publication from Liverpool's Feminist Legal Research Unit, Law and Body Politics: Regulating the Female Body, it seeks to determine what might be causing this distance from the sexed body and to suggest ways in which, for the first time, a truly feminist analysis of the body might proceed. therese.murphy@nottingham.ac.uk

 

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