In Latin America, rights to local political participation in many indigenous communities are not simply granted, but rather “earned” through acts of labor for the community. This is the case in the state of Oaxaca, Mexico, where almost three-fourths of municipalities elect municipal authorities through custom and tradition rather than secret ballot and universal suffrage. The alarmingly low rate of women’s formal participation in these municipalities has garnered attention from policymakers, provoking a series of legislative reforms designed to increase women’s (...) roles in local politics. However, these initiatives often miss their mark. Focused on a liberal model of women as individual rights-bearers, they fail to understand the complex ways in which gendered labor influences political participation in nonliberal contexts. This article examines a case in which indigenous women reject such an initiative because it would exacerbate their exploitation within the local terms of gendered collective labor instead of promoting equality. It thus explains potential barriers to indigenous women’s political leadership at the local level and suggests ways in which gender equality can be promoted in nonliberal contexts. (shrink)

In his recent work exploring the role of science in democratic societies Kitcher claims that scientists ought to have a prominent role in setting the agenda for and limits to research. Against the backdrop of the claim that the proper limits of scientific inquiry is John Stuart Mill’s Harm Principle , he identifies the limits of inquiry as the point where the outcomes of research could cause harm to already vulnerable populations. Nonetheless, Kitcher argues against explicit limitations on unscrupulous research (...) on the grounds that restrictions would exacerbate underlying social problems. I show that Kitcher’s argument in favor of dissuading inquiry through conventional standards is problematic and falls prey to the same critique he offers in opposition to official bans. I expand the conversation of limiting scientific research by recognizing that the actions that count as ‘science’ are located in the space between ‘thinking’ and ‘doing’. In this space, we often attempt to balance freedom of research, as scientific speech, against the disparate impact citizens might experience in light of such research. I end by exploring if such disparate impact justifies limiting research, within the context of the United States, under Title VII of the Civil Rights Act of 1964 or under international human rights standards more generally. (shrink)

Resistance and Rights. Comparing Arendt, Foucault, and YoungThe question if rights can be used in addressing gender-based oppression is at the center of recent debates in feminist theory. On the one hand, post-structuralist critiques have argued that differentiated rights, aimed at redressing injustices, reify the identity of oppressed groups (). On the other hand, proponents of differentiated rights have argued that these should be understood social-phenomenologically, as enabling social agents to counteract their oppression (Young 2011; ). This paper argues in (...) favor for the latter position while taking seriously the concern with regard to social identity articulated by the former. I do so by comparing Hannah Arendt and Michel Foucault on the relation between resistance and rights. Starting from the observation that Arendt and Foucault agree on the need for a new law that can curtail the destructive dynamics of late-modernity, I argue that their account of resistance ascribes great importance to rights. Discussing the two authors in turn, I focus on two parallel themes. Firstly, confronted with the fight against anti-Semitic persecution (Arendt) and the struggle against governmental techniques (Foucault), they invoke rights against the near-total domination by late-modern states. Secondly, reflecting on how freedom practices require relationships with others in which one can develop one’s individual uniqueness, they hint towards rights that consolidate these relationships, of which friendship is the paradigmatic example. In conclusion, I return to the feminist debate on differential rights to show how Young’s model of communicative democracy is influenced by and is an instance of the relational rights that can be found in Arendt and Foucault. (shrink)

At stake for this essay is the distinction between politics and war and the extent to which politics can survive war. Gender analysis reveals how high these stakes are by revealing the complexity of militarism. It also reveals the impossibility of gender identity as foundation for a more robust politics with respect to war. Instead, a non-ideal normative differentiation among kinds of violence is affirmed as that which politically cannot not be wanted.

This intervention queries whether subjecting feminist jurisprudence to a methodological transfiguration toward pragrammatology (Derrida, in Smith and Kerrigan 1984) holds liberating potential for f (be it ‘woman’, ‘female’ or ‘feminine’) as both a signifier and a subject to be read with lucidity and nuance in feminist justice claims. I examine feminist jurisprudence’s methodological challenges in the settler colonial context of Alaska with respect to the murders of Della Brown (in 2000) and Mindy Schloss (in 2007). I advance my case for (...) pragrammatology as a critical methodology for feminist jurisprudence by subjecting the case(s) of Brown and Schloss to a more lucid (re)reading in two related and intersecting moves. First, I trace and deconstruct the citations of Brown and Schloss’ legal narratives to expose violence in the systemisation of f as a power and legal relation (Ahmed in Soc Legal Stud 4:55–73, 1995). I then examine the paradoxical nature of f justice claims which necessitate a pragrammatological approach. I conclude by advancing counsel on how we might move within paradox. (shrink)

The article starts with the observation of an ambivalence inherent to the politics of juridification. On the one hand, some spheres of the life-world such as the family and the school are often places of exploitation, degradation and humiliation and therefore seem to require the implementation of legal protection for their members. At the same time, the demand for rights seems somehow to grasp too little, would be inadequate or even counterproductive. How can this ambivalence be politically dealt with? I (...) first briefly reconstruct Jürgen Habermas' concept of juridification. I believe that Habermas works with an image of the family and the school as communicatively constituted and juristically uncompromised milieux, which proves to be highly questionable. In a second step I consider Axel Honneth's theory of the absolutization of legal freedom as offered in his recent work Freedom's Right. Honneth sidesteps several problematic implications of the Habermasian thesis of colonization, but still tends to underestimate the dominant patriarchal power relations in the spheres of the family and the school. Finally, I pursue Honneth's own suggestion that a new notion of politics is required for understanding contemporary struggles for recognition, which overcomes the statist tendencies of liberalism. I therefore propose to shift the perspective on the phenomenon of juridification, viewing it instead from the standpoint of the agents themselves, by turning to Wendy Brown's feminist theory on the paradoxes of rights. (shrink)

The focus of this paper is Butler's recent work on Antigone, kinship and the state. Like many advocates of radical democracy, Butler is suspicious of attempts to enlist state support for political demands, preferring politics at the level of civil society. Butler turns to the narrative of Antigone, in part, to explore just such a version of (feminist?) resistance to the state but also, crucially, to contemplate the constitutive role that Antigone (and her contemporary counterparts) represents in respect of the (...) formation of the state and politics. While sympathetic to Butler's thesis in general, in this paper, I raise three sets of questions concerning her reading of the state. First, I explore the ambiguity surrounding her conceptualization of the state. Next, I turn to the tension between the state's purported efficacy in achieving its aims and the theory of resignification that Butler deploys widely throughout her work. Finally, I look at the understated role of Creon whose failure to compel obedience from Antigone is largely occluded in Butler's re-reading of Antigone. (shrink)

The focus of this paper is Butler's recent work on Antigone, kinship and the state. Like many advocates of radical democracy, Butler is suspicious of attempts to enlist state support for political demands, preferring politics at the level of civil society. Butler turns to the narrative of Antigone, in part, to explore just such a version of (feminist?) resistance to the state but also, crucially, to contemplate the constitutive role that Antigone (and her contemporary counterparts) represents in respect of the (...) formation of the state and politics. While sympathetic to Butler's thesis in general, in this paper, I raise three sets of questions concerning her reading of the state. First, I explore the ambiguity surrounding her conceptualization of the state. Next, I turn to the tension between the state's purported efficacy in achieving its aims and the theory of resignification that Butler deploys widely throughout her work. Finally, I look at the understated role of Creon whose failure to compel obedience from Antigone is largely occluded in Butler's re-reading of Antigone. (shrink)

This article examines how efforts at legal legibility acquisition by gender diverse litigants result in problematic (e.g., narratives counter to self-identity) and, at times, erroneous discourses on sex and gender that homogenize the litigants themselves. When gender diverse persons approach the court with a rights claim, the narrative they present must necessarily limit itself to a normative discourse that the court may understand and, therefore, engage with. Consequently, the everyday lived experiences of gender diverse persons are often deliberately erased from (...) the narrative as litigants mould themselves into the pre-existing normative legal categories of gender and sex. As a result of such mechanisms, the article finds that gender diverse litigants face epistemic injustice in the courts as their legal legibility is constructed within a constraining gender binary paradigm of judicial discourse.The article explores the trajectory of transgender rights in India, through an analysis of case law prior to and post the landmark NALSA decision, to understand how the approach to transgender rights and identities has been shaped by and shapes, in turn, normative conceptions of gender. The article argues for the incorporation of temporal pluralism into the law that would allow courts to hear gender diverse litigant accounts premised on contemporary gender diversity beyond the binary (rather than incontestable prior understandings based in past precedent), which would better account for such social injustices. (shrink)

As dominant liberal conceptions of the relationship between rights and freedom maintain, freedom is a property of the individual human subject and rights are a mechanism for protecting that freedom—whether it be the freedom to speak, to associate, to practise a certain religion or cultural way of life, and so forth. Rights according to these kinds of accounts are protective of a certain zone of permitted or valorised conduct and they function either as, for example, a ‘side-constraint’ on the actions (...) of others or as a ‘trump’ over governmental or community goals. In such accounts, of course, the emphasis is placed upon the forms of power against which rights protect the individual, whether that be the trespasses of others or the overweening attentions of the state. Such accounts famously do not themselves take much account of the multiple ways in which rights also function as forms of power, often delimiting the courses of action that a putative rights-holder can take and affecting the manner of its exercise, indeed often in the very name of freedom itself. Of course, there is a sizeable critical literature which does address itself to these kinds of question, most notably from the radical traditions of Marxism and critical legal theory, which see rights in terms of the relations of production, consumption and exploitation that they establish between legal subjects. For various reasons, Foucault has not figured as prominently in critical discussions of rights. Here I do not propose to enter into debates surrounding Foucault’s engagement with, or failure to engage with, law as an object of study, nor with the emergent literature on Foucault’s deployments of rights, indeed even of human rights. Rather, what I want to do in this paper is to articulate and defend the view that through a reading of Foucault’s work, both on rights and on power relations more broadly, we can discern an understanding of the political ambivalence of rights. For Foucault (and for some of the post-Foucaultian scholars whose work I shall address, below), rights are both political tools for the contestation and alteration of mechanisms of power and simultaneously mechanisms of inscription, both disciplinary and governmental, which work to conduct those who rely upon them. Far from being an unproblematic tool for the protection of the subject’s freedom, rights emerge in this account as conflicted and ambivalent mechanisms. In the first part of this paper I develop a Foucaultian account of rights along these lines and then hope to illustrate it by reference to several examples, from the constitution of gender and cultural identity via rights to the figure of the refugee, whilst in the final part of the paper I make a return to the idea of freedom in Foucault’s work and link the view of rights developed herein to a certain conception of freedom in his work. (shrink)

Pioneering work in interdisciplinary animal studies, much of it under the rubric of ecofeminism, dates back to the 1970s. Yet animal studies remained an idiosyncratic backwater until its twenty-first-century reinvention as a high-profile area of humanities research. This essay ties the soaring cachet of the new animal studies to a revamped origin story—one beginning in 2002 and claiming Derrida as founding father. In readings of Derrida and leading animal studies theorist Cary Wolfe, I examine the gender politics of animal studies (...) today, especially that affiliated with Wolfe’s formulation of posthumanism. In addition to slighting important ecofeminist precedents, this approach to animal studies is remarkably anxious to distance itself both from emotional attachments to animals and from scholars working on gender, sexuality, and race. I attribute this anxiety in part to the gendered opposition, longstanding in academia, between scholarship frankly motivated by feeling and scholarship whose prestige depends on claims to “masculine” objectivity and theoretical rigor. To counter this logic, I turn to animal studies foremothers Carol Adams and Donna Haraway; despite disagreements on several key issues, Adams and Haraway share a readiness to own their debt to feminist thinking and to see their theoretical work as inseparable from emotional and political commitments to animals. (shrink)

Este artículo propone una aproximación crítica al concepto de femicidio. Se repasa su origen y las diferentes versiones desarrolladas por su proponente, Diana Russell, a más de algunas otras alternativas de la definición. Se realiza una aproximación analítica al mismo, y se revisan sus cualidades intensionales y connotativas. Se hace una breve relación con respecto al concepto alternativo de “feminicidio” y se desarrolla una crítica a ambos. Se refuta la idea de femicidio como un delito de odio y se termina (...) con un análisis sobre las dificultades de la instrumentalización jurídica del concepto, tal como ha sido propuesto. (shrink)

This paper investigates how a performative understanding of a woman’s right to care can become part of a feminist politics which is able to transcend the well-worn dichotomies we find both within and without feminist literature, such as difference versus equality, difference versus repronormativity, and rights as freedom versus rights as domination. Drawing on my own research, I argue that claiming the right to care does not simply push women more deeply into motherhood resulting in even more control and regulation (...) of their lives, but that claiming care rights enables women to speak for themselves. Following the work of Linda Zerilli this paper argues that claiming women’s rights should, above all, be viewed as performative activities which contribute to democratic practices. (shrink)

Irish legislative engagement with abortion law reform has never been framed by recognition of the rights of pregnant women, girls and other people. Rather, where it has taken place at all, it has always been foetocentric and punitive, exceptionalising abortion and conceptualising law as a means of discouraging it. In important ways, the post-repeal landscape has failed to break decisively with this orientation. While in 2018 there was certainly more discussion of women’s entitlement not to be exiled from the country (...) in order to make decisions about reproduction, the framing that dominated legislative and government discourses of abortion law reform was one in which the ‘problem’ being addressed was such that unsafe medication, exclusion from formal medical systems, and the undeserved punishment of people who had received diagnoses of fatal foetal conditions in the course of their ‘much wanted pregnancies’ were the focus. There was little or no engagement in legislative politics with the right to choose, reproductive agency, reproductive justice or the moral standing of pregnant people as ethical decision makers when it came to their pregnancies. As a result, post-repeal abortion law reform was more about managing risk than maximising agency. I will argue that this underpins and partly explains the shortcomings of the new law: the Health (Regulation of Termination of Pregnancy) Act 2018 (‘HRTPA 2018’). Within that new legal regime, I argue, pregnant people continue to lack decisional security when it comes to their reproductive lives and are exposed to significant constitutional and dignitary harms as a result. (shrink)

In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Aga...

Philosophy & Social Criticism, Volume 47, Issue 9, Page 1025-1042, November 2021. In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Against this view, I argue that this trend – which some scholars call ‘juridification’ – can be key to giving life to new forms of politics. First, I show why juridification is a political more than a legal (...) process. Second, I illustrate recent critiques of the dangers inherent in the particular type of juridification that involves the growing use of rights. Third, while concurring with these critiques, I make the case that other facets of juridification are often underrated that can ignite a novel kind of politics. On this account, I go on by elaborating on the idea of self-organization of social groups vis-à-vis the state that is entailed in this notion of politics. Finally, I discuss the recognition of non-conventional family networks to exemplify how a politics of juridification could work. The conclusion is that, while juridification calls for a thorough revision of the tasks of politics, it does not thwart it. Rather, traditional representative politics could and should take stock of how it involves social actors in the creation of new bodies of regulation. (shrink)

This article deals with the issue of resignification to advance a hypothesis on the way in which social practices are transformed with recourse to the language of institutions. It first discusses the transition from gay liberation to same-sex marriage equality by exploring the trajectory of homosexuals’ rights claims. The article continues by providing a theoretical interpretation of what brought this shift about, that is, what the author calls a movement ‘from the street to the court’: in both civil law and (...) common law jurisdictions, legal means are increasingly being used by individuals and groups to make their claims audible to political institutions and to society at large. Then, an analysis is offered of the shape that social struggles take when socio-political claims are articulated with recourse to the legal language. The conclusion is that reliance on the law as a device to achieve political goals and construct same-sex group identity risks producing but a feeble resignification of the conventional heterosexual matrix. In light of that, a more effective way to defy this matrix is to create awareness of what is gained and what gets lost in becoming legally visible. (shrink)

This brief article introduces a special issue of Feminist Legal Studies addressing gender, sexuality and human rights, and comprising papers drawn from an E.S.R.C.-funded workshop held at the University of Kent in June 2004 on the theme of “Gender-Auditing the Human Rights Act”. The article begins by situating the themes of the special issue within the broader context of feminist engagement with rights discourse. It goes on to consider the introduction of the Human Rights Act 1998 into the U.K. with (...) a view to assessing its implications in terms of engendering a positive legal and political culture for equality-seeking initiatives. The article concludes with a survey of the contributions to the special issue, highlighting the possibilities for feminist theory and strategy posed by a wider intersectional engagement with rights issues. (shrink)

Although international law grants a distinct juristic personality to indigenous peoples, this subjecthood is premised on a hierarchical reading of ethnicity and indigeneity. Through illustrations of Adivasi experiences in India, this article interrogates the prejudices of the global juridical discourse that are reproduced by the domestic jurisdiction, exposing the voyeuristic performance of legality in constructing indigenousness.

Researchers have recently documented the unexpected opportunities war can present for women. While acknowledging the devastating effects of mass violence, this burgeoning field highlights war’s potential to catalyze grassroots mobilization and build more gender sensitive institutions and legal frameworks. Rwanda and Bosnia-Herzegovina serve as important examples of this phenomenon, yet a closer examination of both cases reveals the limits on women’s capacity to take part in and benefit from these postwar shifts. This article makes two key contributions. First, it demonstrates (...) how the postwar political settlement created hierarchies of victimhood that facilitated new social divisions and fractured women’s collective organizing. Second, it argues that while war creates certain opportunities for women, a revitalization of patriarchy in the aftermath can undermine these gains. Drawing on more than 250 interviews with women in both countries, this article ultimately questions the extent to which postwar mobilization can be maintained or harnessed for genuine gender emancipation. (shrink)

At stake for this essay is the distinction between politics and war and the extent to which politics can survive war. Gender analysis reveals how high these stakes are by revealing the complexity of militarism. It also reveals the impossibility of gender identity as foundation for a more robust politics with respect to war. Instead, a non-ideal normative differentiation among kinds of violence is affirmed as that which politically cannot not be wanted.

In this paper, I engage with the radical critique of human rights moralism. Radical critics argue that: human rights are myopic ; human rights are demobilising ; human rights are paternalistic ; and human rights are monopolistic. I argue that critics offer important insights into the limits of human rights as a language of social justice. However, critics err insofar as they imply that human rights are irredeemably corrupted and they under-estimate the subversive potential of the moral ideas that underpin (...) the discourse. Building on the idea of human rights as claims, I set out the politicising features of human rights as they are deployed in a practical context of disagreement, conflict, and imbalances of power. I illustrate this discussion with reference to the contemporary struggles of irregular migrants. (shrink)

The new frontiers in the philosophy of intellectual property lie squarely in territories belonging to moral and political philosophy, as well as legal philosophy and philosophy of economics – or so this collection suggests. Those who wish to understand the nature and justification of intellectual property may now find themselves immersed in philosophical debates on the structure and relative merits of consequentialist and deontological moral theories, or disputes about the nature and value of privacy, or the relationship between national and (...) global justice. Conversely, the theoretical and practical problems posed by intellectual property are increasingly relevant to bioethics and philosophy and public policy, as well as to more established areas of moral and political philosophy. Perhaps this is just to say that the philosophy of intellectual property is coming into its own as a distinct field of intellectual endeavour, providing a place where legal theorists and philosophers can have the sorts of discussions - neither reducible to questions about what the law is, nor wholly divorced from contemporary legal problems - which typify debates about freedom of expression, discrimination and human rights. These are all areas in which legal and philosophical ideas influence each other at the level of method as well as of substance. My hope is that this collection of essays will appeal to those who, whatever their professional specialty or training, share an interest in the philosophy of intellectual property, and that it will build upon and advance existing interdisciplinary dialogue and research in this complex, fascinating, and important area. Authors include John Christman, Stephen Munzer, Alex Rosenberg, Geert Demunijck, Laura Biron, James Wilson . (shrink)

Nota crítica sobre los principales debates de los feminismos jurídicos a través de sus antecedentes y postulados epistemológicos.