Laws2013, 2(4), 483-511; doi:10.3390/laws2040483 (doi registration under processing) - published online 13 December 2013 Show/Hide Abstract
Abstract: In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for ‘official customary law’. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women’s claims to land, and reveals how changes in women’s access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.
Laws2013, 2(4), 469-482; doi:10.3390/laws2040469 - published online 26 November 2013 Show/Hide Abstract
Abstract: This article analyses juridical discourses about Medically Assisted Reproduction (MAR) in Portugal, focusing specifically on the access of lesbians to this type of intervention. Empirical data refer to an exploratory research that combined the analysis of legislation with non-directive interviews to five judges from Family and Juvenile Courts of Law of the Northern Region of Portugal. One argues that the representation of motherhood present in the law reinforces and reproduces normative sexuality and femininity while simultaneously justifies the exclusion of lesbians from MAR. As such, although Portuguese legislation emerges as a mechanism of partial deregulation of the gender regime since it appears to weaken the practical and causal association between sexuality and procreation, in fact, it ends up reinforcing dominant ideas of femininity and family. As for the judges who were interviewed, their representations of motherhood are broad enough to encompass medically assisted motherhood and/or motherhood accomplished within a lesbian couple. This is achieved through a process of normalisation of the lesbian and/or of lesbian motherhood, which may resort to five different assumptions: (i) parenthood as a desire inherent to every human being; (ii) motherhood as a defining element of femininity; (iii) motherhood as a project framed by a stable conjugal relationship; (iv) lesbian motherhood as something that can be accomplished through “natural” means; (v) parenthood as a mechanism of social reproduction of the gender regime. These assumptions are differently combined and support different positions regarding lesbian motherhood: although some judges seem to concur with the preservation of heteronormativity, most favour legal changes to encompass other models of sexuality and family.
Laws2013, 2(4), 440-468; doi:10.3390/laws2040440 - published online 13 November 2013 Show/Hide Abstract
Abstract: This paper examines the authoritarian immigration policy of the Republic of Cyprus (RoC), which often results in the denial of the rights of migrants, TCNs, and EUNs. It examines how the mode of immigration control is connected to the particular state of exception in Cyprus known as ‘the doctrine of necessity’. It focuses particularly the issue of criminalizing, detention and expulsion of migrants, both TCNs and EUNs and the denial of residency rights for TCNs. The paper introduces the basic components towards an analytical frame for understanding and critiquing the current legal framework. Repressive migration control is a manifestation of an ill-construed conception of ‘sovereignty’ in a divided country, which the State seeks to justify on the grounds of ‘necessity’ and ‘exception’. In addition, the RoC is currently facing the banking/economic crisis and mass unemployment, which has provided a fertile ground for racism and xenophobia. The paper concludes with some ideas about the alternative policies ahead. Important for this paper are the current global and European debates around the ‘states of exception’, ‘emergency’, ‘necessity’, and ‘sovereignty’ in the context of the dissensus or fundamental disagreement over the issue migration and the racialization of subaltern migrants. The case of Cyprus is discussed, in part as an exception, but also as a particular instance of a broader global and European issue.
Laws2013, 2(4), 428-439; doi:10.3390/laws2040428 - published online 12 November 2013 Show/Hide Abstract
Abstract: In 1976, prisoners acquired the right to medical treatment from the U.S. Supreme Court through the Eighth Amendment to the United States Constitution, which forbade, in part, cruel and unusual punishment. The following year, a Fourth Circuit Court of Appeals ruled that medical treatment included psychiatric or mental health treatment. These rulings applied to general prisoners, but not initially prisoners who suffered from gender identity disorder. Courts ruled then that gender identity disorder was not a serious mental disorder—a critical component of the right to medical care and mental health treatment. Later, a few appeals courts ruled that gender identity disorder was a serious mental disorder, triggering a prisoner’s right to medical care and mental health treatment for this disorder. Prisoners with gender identity disorder have litigated for sex realignment surgery as part of their treatment, which prison administrators have balked. The latest ruling unequivocally ordered the Massachusetts Department of Corrections to give a prisoner suffering from gender identity disorder sex reassignment surgery, but the prison system has appealed. This ruling, and previous rulings, has furthered policy towards transsexual prisoners.
Laws2013, 2(4), 401-427; doi:10.3390/laws2040401 - published online 22 October 2013 Show/Hide Abstract
Abstract: This paper argues that discussion of new food-safety governance should be framed by the realization that the dominant food system within which food-safety governance is designed to makes food safe is itself a structural and systemic sources of food un-safety, poor health and a future of food insecurity for many. For some, an appropriate policy response lies in addressing the connections between the food system and diseases such as heart disease, obesity and diabetes. For others it means subsuming food-safety governance within food security governance. For yet others, safe food implies food sovereignty governance and the primacy of a climate change resilient food system. Conventional approaches to food-safety governance are typically framed within a liability model of responsibility that has limited usefulness for addressing institutional, structural or systemic sources of harm such as those critics increasingly attribute to the dominant food system and which are not amenable to remedy by food-safety governance as it is widely understood. One cannot identify critical hazard points where risk is to be managed. These are food-system safety challenges. Because food-safety governance is so deeply political there needs to be greater attention to issues of governance rather than the more usual focus on the technologies of food-safety. Feminist political theorists have much to contribute to re-thinking food-safety governance in the context of diversity and the complexities of power. One could usefully start with the simple questions, “what food is to be kept-safe, for whom and who is the subject of food-safety governance in a post-Westphalian political economic order?” These questions can help unpack both the narrow parochialism and the misleading universalism of food-safety talk. This paper answers that neither the citizens of a particular state (or network of states) nor the falsely universalizing identity of ‘the consumer’ are adequate answers to these questions about ‘who’ and ‘what’. Answering these questions about who and what with respect to food-safety governance brings issues of justice, ecology, public health and the legitimacy and nature of governance itself into the heart of food-safety discussions.
Laws2013, 2(4), 392-400; doi:10.3390/laws2040392 - published online 15 October 2013 Show/Hide Abstract
Abstract: Objective: Approximately 260,000 of youth in the United States are gang-affiliated. There is a paucity of data available to identify the prevalence of mental health disorders in this population. Gang members share many of the features of “at risk” or juvenile justice involved youth who deny gang membership. The authors identified rates of psychiatric disorders within a juvenile justice population delineated in three categories: gang members, friends of gang members, and non-gang members. Methods: A retrospective review of records obtained by a juvenile probation department. A large detention center conducted mental health screenings on 7,615 youth aged 13–17. The mental health screenings were performed by either a master level or doctoral level mental health professional. Odds ratios were computed as an effect size for gender, race/ethnic differences, and gang-membership associations with self-reported psychiatric and substance use disorders. Logistic regression was used to evaluate the risk for psychiatric and substance use disorders among gang-members and friends of gang members. Diagnostic information was generated through a clinical interview and flexible battery. Results: Of the 7,615 youth in this study, ~50% had contact with gangs; 11% were self-identified gang-members, and 38% acknowledged having at least one friendship with a gang member. Similar to other studies, being male was a risk-factor for gang-membership (2.31 odds). In this multi-racial and ethnic study, Latinos had a greater affiliation with gang membership and association with gang members as friends (1.44 odds). Gang members were found to have increased rates of post-traumatic stress disorder (1.77 odds), current substance abuse (2.58 odds), oppositional defiant disorder, (1.24 odds) and conduct disorder (4.05 odds); however, they were less likely to have an adjustment disorder than non-gang members (0.70 odds). Conclusions: Juveniles who received a mental health assessment in this study were found to have differences in rates of psychiatric disorders and substance use based upon gang-affiliation or association. Current data is limited and inconsistent in the delineation of individual, family, peer, school and community characteristics specific to gang members. These differences warrant further investigation for intervention and treatment.