"Sound law and undoubtedly good policy": Roe v. Wade in comparative perspective

This article traces the abortion reform processes in the US, the UK, and Australia to reveal the underlying rhetoric and policy rationales which served to fuel abortion reform. The early abortion legislation in Great Britain, Australia, and Texas is described to lay the groundwork for a discussion on the widespread modification the laws were subject to through medical practice and judicial interpretation. In 1938, a trial judge in Britain carved out a legal loophole to sway a jury to acquit a physician who openly performed an abortion on a 14-year-old rape victim. The judge found that the law neither prohibited abortion absolutely nor permitted unrestricted medical discretion, but rather lay within the two extremes. Before the 1960s, psychiatric subterfuges were used by physicians as justification for performing abortions for "social" reasons, but reform was spearheaded by concerns about rape, incest, and fetal damage (especially after exposure to rubella or thalidomide). Reformers also argued that abortion would reduce poverty, and it soon became clear that all but the poor could obtain safe abortions. Claims were also made that abortion had historically been allowed before quickening. A new consensus grew and was encouraged by physicians who accepted abortion because it furthered social justice. The law struggled to keep up. In Britain a major reform bill was enacted by Parliament. In Australia, the police gave up trying to prosecute doctors as judges interpreted the law in such a way as to render the doctors innocent of wrongdoing, and, in the US, some states adopted liberal laws. The Roe vs. Wade decision in the US, therefore, may have made abortion a constitutional issue through use of the doctrine of privacy, but the other elements of the decision reflected the situation in the UK and Australia. For example, the Row decision relies on the physician-patient relationship to regulate abortion on demand. Also, the decision acknowledges that conflicting rights exist which allow the law to neither prohibit abortion nor leave it entirely unrestricted. In each country, the legislation is centered on the professional competence of the practitioner and on the provision of abortion before quickening. This reliance on a medical decision imbues the abortion debate with a certain ambiguity which is shared by all three countries.     

Confrontation and conciliation: the sami,the crown and the court in seventeenth-century swedish lapland1

This article aims to discover in what kind of legal cases conflicts may be traced between the Sami and representatives of the Crown, and in which situations conciliation is apparent; and it also answers the questions of how and why this happened. It is evident, from the court rolls from the court district of Jukkasjärvi (one of the two northernmost lappmarker in Sweden at this time), that the Crown prosecuted the Sami for sexual offences and crimes against religion. This was due to the prevailing ideology of the seventeenth century, in which Lutheran Christianity prevailed, and because the court was the arena for a power discourse: there was a “right” way to live and behave. This came into conflict with Sami tradition. The Sami themselves pursued a desire and need for conciliation, which becomes apparent in cases of crimes such as murder, manslaughter and grand theft, but also in civil cases, e.g. inheritance. This was due to the fact that the population was quite small, bound together in different relations, and because large-scale conflicts were not beneficial to Sami communities. Even though the Crown Court was an arena of power, it was also used by the Sami for their own ends, and thus we can see an interactive Sami society, independent of the prevailing political Lutheran Christian ideology and its discourse.     

"Ready to shoot and do shoot": black working-class self-defense and community politics in Harlem, New York, during the 1920s

Throughout the first three decades of the twentieth century, black people in New York City encountered white violence, especially police brutality in Manhattan. The black community used various strategies to curtail white mob violence and police brutality, one of which was self-defense. This article examines blacks’ response to violence, specifically the debate concerning police brutality and self-defense in Harlem during the 1920s. While historians have examined race riots, blacks’ everyday encounters with police violence in the North have received inadequate treatment. By approaching everyday violence and black responses—self-defense, legal redress, and journalists’ remonstrations—as a process of political development, this article argues that the systematic violence perpetrated by the police both mobilized and politicized blacks individually and collectively to defend their community, but also contributed to a community consciousness that established police brutality as a legitimate issue for black protest.     

Community regulation and its effects: the aggressive actions of parishioners against priests and women in Paris, 1483–1505

At the start of the sixteenth century, the archidiaconal court of Paris lacked centralised means of enforcement and relied heavily on parishioners to supervise one another and their priests. This article analyses cases from court registers dating from 1483 to 1505 that detail instances in which parishioners reacted aggressively to illicit contact between priests and women. It argues that the court appropriated parishioners' intimidating and sometimes violent separations of priests and women as a means to enforce ecclesiastical statutes calling for strict domestic segregation between the two. While the court relied upon the aggression of parishioners, it also protected priests, more than women, against extreme actions such as assault. The decisions made by the court created a system in which violence against women could be an acceptable means for enforcing its statutes at parish level.     

The legal grading of sexual citizenship: sentencing practices in Norwegian rape cases

This article maps and discusses the legal processing of rape cases in Norwegian appellate courts. Drawing on data from a multivariate regression analysis and a qualitative frame analysis, we examine the significance of space, accuser-convict prior relationship, the social context, accuser-convict marital relationship status, and convict racial background for grading of sentences in rape cases. The data-set consists of 176 rape cases that were processed in 2011 and 2012. Excluding acquittals and controlling for the application of relevant legal provisions, we find that sentences are reduced by 30% if the rape occurs in a private space as opposed to a public space. If the rape occurs at a party or is committed by a perpetrator who is a member of a racial majority, we find that sentences are reduced by 20%. A prior relationship between the victim and the perpetrator reduces sentencing by 18%. Results regarding victims of marital rape are inconclusive. The study concludes that sentencing is stratified according to the public/private divide, prior relationship, social context and race. Despite progress made on behalf of victims of domestic violence and a gradual implementation of stricter sentencing in line with legislative intentions, the legal processing of rape cases is permeated by race and gender discrimination.     

Reflections on the History and Historians of the black woman’s role in the community of slaves: enslaved women and intimate partner sexual violence

Taking as points of inspiration Peter Parish’s 1989 book, Slavery: History and Historians, and Angela Davis’s seminal 1971 article, “Reflections on the Black Woman’s Role in the Community of Slaves,” this probes both historiographically and methodologically some of the challenges faced by historians writing about the lives of enslaved women through a case study of intimate partner violence among enslaved people in the antebellum South. Because rape and sexual assault have been defined in the past as non-consensual sexual acts supported by surviving legal evidence (generally testimony from court trials), it is hard for historians to research rape and sexual violence under slavery (especially marital rape) as there was no legal standing for the rape of enslaved women or the rape of any woman within marriage. This article suggests enslaved women recognized that black men could both be perpetrators of sexual violence and simultaneously be victims of the system of slavery. It also argues women stoically tolerated being forced into intimate relationships, sometimes even staying with “husbands” imposed upon them after emancipation.     

The Construction of Continuity in Lesu: The Historical Anthropology of a New Ireland Society

This study examines features of social organization originally encountered in New Ireland in 1929–30 by the anthropologist Hortense Powdermaker. It aims to depict important aspects of social life before these were transformed by colonial and missionary influences. Kinship and marriage are discussed as topoi in discourses of continuity. It is suggested that in a social landscape of demographic limitations and widespread violence, social morphology was generated through categorical distinctions providing symbolic order in a dense texture of factual kinship, an order imposed to counteract the ever‐present shadow of incest. The social grammar prescribed a primary uterinely defined demarcation of belonging. As a parallel counterpoint, there was also an agnatically inspired alternative cultural modality. In this other possible world, the main distinction was that between men and women, uterine belonging being irrelevant.     

THE INCEST PASSIONS: AN OUTLINE OF THE LOGIC OF IQWAYE SOCIAL ORGANIZATION

Incest is best elucidated as a plethora of human desires, which are affirmed by their social regulation rather than negated by it This contrasts with the received wisdom of anthropological theory which is focussed on the prohibition of incest rather man on the incest desires which motivate the logic of their social regulation through interdictions. The theoretical fixation on prohibition expresses modern Western bourgeois incesto-phobic sensibilities and morality. The upshot of this study is that among the Iqwaye, contrary to the classic incesto-phobic formulations whereby the prohibition of incest is the condition of human sociality, without the positive fulfilment of incest there is no human kinship or social existence. In Part 1 the problematics of incest are delineated in the context of Iqwaye mythopoeic cosmogony. In Part 2 (to appear in the next Oceania issue) I present concrete articulation of incest passions in the main structural configurations of Iqwaye social organization (the naming system, patrifiliation, matrifiliation, affinity, cross-sex siblingship, institutionalized male homosexuality). Thus, the theoretical view of incest outlined in the first part is ethnographically demonstrated. A special emphasis is placed on the centrality and irreducibility of radical imagination in the constitution of human social reality.     

Court-day crowds in colonial Virginia

ABSTRACT

For a generation, legal historians investigating colonial Virginia have emphasized the dramaturgy of court day. According to the dramaturgical school of interpretation, administrative and judicial activities of county court officials amounted to theatrical performances that simultaneously enforced economic order and stabilized traditional social relationships. Such interpretations assume a large audience routinely attended county courts to observe legal dramas. Often, however, only a small number of persons can be documented as present during court day. The independence theorem from probability theory suggests that the number of documentable attendees is a useful and easily calculated estimate for actual total crowd size. If so, some Virginia court sessions were attended by hundreds of people, while others drew only a few participants. A variety of factors apparently inhibited court attendance in older Virginia counties. By contrast, in newer frontier counties, mid-eighteenth-century revisions of court calendars produced heavy attendance at court day. Regardless of the number of people in attendance, any Virginia county court could still effectively enforce credit contracts.     

Scales of grievability: on moving children and the geopolitics of precariousness

This article investigates legal performativities of grievability in contemporary child migration and argues for a scalar approach to analyse and understand the cultural politics underpinning current debates on the ‘moving’ child. I turn to two court cases in the Dutch context that involve alleged child trafficking in international adoption on the one hand and the threat of deportation in child asylum on the other. These two forms of child migration have rarely been investigated in tandem although both concern the transnational movement of children from the global South to the wealthy North. By focusing on the legal concept of ‘the right to family life’ and ‘the best interest of the child’ I point to the performativity of law and the ways in which cultural constructions of the child, childhood, kin and humanitarianism intervene in our work of justification. My contention is that placing these ‘different-but-same bodies’ within a scalar dimension – one that takes into account spatio-temporal conditions of grievability – enables us to understand modern investments in child-bodies and the complexities of justice in globalization.     

A Manifesto against Femicide

In Ciudad Juárez, a group of feminist activists has established the city's first sexual assault center, called Casa Amiga. They accomplished this feat after launching a social movement on several fronts against the notion that Juarense women are cheap, promiscuous, and not worth efforts to provide them a safe refuge from domestic violence, incest, and rape. The essay explores their efforts as a means for asserting the value of women in Ciudad Juárez, an assertion with reverberating effects in the maquiladora industry that has prospered based on this image of Juarense women. By combining a Marxist critique of value with post-structuralist analyses of the subject, the essay argues that projects such as Casa Amiga represent plausible sites for the organizing of alliances whose objective is to reverse the depreciation of laborers.     

Genocide as Fact and Form

ABSTRACT

In June 2019 Canada's National Inquiry into Missing and Murdered Indigenous Women and Girls released its final report. This short Reflection focuses on the National Inquiry's supplementary legal analysis, which concerns the law of genocide. I contend that this analysis is correct in holding that the murder and disappearance of large numbers of Indigenous women, girls, and other persons ought to be understood as an ongoing crime facilitated by specific policy choices, legal decisions, and socio-economic structures. I also contend that the systemic, recurrent, and large-scale nature of this crime is best captured by the term “genocide.” I argue that formal legal definitions of “genocide” such as the one offered in the 1948 Genocide Convention, though conceptually clunky, historically contingent, and politically inadequate, are key to illuminating some of the structural forces underlying and animating a range of events that may otherwise appear unrelated. Genocide, the ultimate collectivist crime, is a concept of preponderantly legal origin, which means that serious consideration must be given to its specifically legal definition when trying to determine whether it is justifiable or appropriate to apply it to a given social phenomenon. Its standard legal definition may be unable to do justice to the specificities of different modes of group violence, but its abstract generality is also what enables those who employ it to highlight the intrinsically systemic character of such destruction. Ultimately, I suggest that Canada's genocide “debate” turns on the relation between “law” and “society”—the question, that is, of how precisely a legal definition is to be interpreted and applied under different, and often rapidly changing, social conditions.     

The Many Tongues of the King: Indigenous Language Interpreters and the Making of the Spanish Empire

General language interpreters of Lima's High Court of Appeal (Audiencia) played a significant part in gaining access to the Spanish system of justice for the indigenous populations of Peru. These interpreters worked as translators in lawsuits, notarial transactions, and other legal and administrative procedures conducted or supervised by the viceroy, the justices of the Audiencia, the public defender of the Indians, and other officials stationed at the viceregal court. But they also served as legal agents and solicitors for native leaders and communities litigating in Lima or aspiring to take their cases to the Supreme Council of the Indies in Spain. Through formal and informal dealings, these interpreters brokered between the king and his native subjects, thus connecting indigenous groups with the Habsburg royal court. The careers of these official translators illustrate the crucial roles played by indigenous subjects in the formation of what can be termed the ‘Spanish legal Atlantic,’ an organic network of litigants, judges, lawyers, attorneys, and documents bridging courtrooms on both shores of the ocean.     

THE BUSINESS OF MOBILITY: GEOGRAPHY, LIBERALISM, AND THE CHARTER OF RIGHTS

Inspired by some important inter-disciplinary work in both legal studies and human geography, I explore the vision of geography - with special reference to the theorization of mobility - that appears to be expressed within mainstream legal discourse. I argue that the legal account is premised on the privileging of certain components of liberal thought, including the individual, the private sphere, and concepts of frictionless spatial mobility. I try to demonstrate that this vision is partial and selective and ignores an alternative and insistent account of the geography of social life that appears prevalent within civil society. Evidenced by the reactions of many small towns to threats of economic dislocation, the emphasis here appears to be one that elevates concepts of place and the community. Drawing upon recent higher court decisions in British Columbia concerning the meaning of section 6 (mobility rights) of the Canadian Charter of Rights and Freedoms, I argue, firstly, that the legal vision is ultimately indeterminate and contingent but, secondly, that its hegemony has certain implications for social life, social justice, and the city.     

Mass violence,trauma, and their children

This article concerns the social construction of collective memory particularly with regard to the social remembering of mass violence and trauma. How do individual memories of mass violence which are often idiosyncratic, nonverbal, and embodied coalesce and crystallize into coherent narratives shared by a group. The books reviewed here demonstrate that there are both discursive means of remembering and non-discursive means of remembering. Social memories can take narrative and textual form or they can take performative and ritual form. How does the non-discursive interact with the discursive and do these interactions depend upon varying social, political, and cultural circumstances? An encompassing theoretical issue is addressed in this literature concerning the adequacy of sociological and anthropological models in the elucidation of trauma memory vs. psychological models which place emphasis on the individual. Subsumed within this question is an inquiry into the adequacies and inadequacies of Western clinical models, such as the PTSD model, in explaining trauma due to mass violence, and the opposition frequently noted among survivors between silence and verbalization. Numerous ethnographic examples are considered in this article but particular attention is paid to the Nazi, Cambodian, and Rwandan genocides.     

The placing of matter: industrial water pollution and the construction of social order in nineteenth-century France

Set within a Douglasian framework, this paper explores the genesis and the social significance of the concept of environmental ‘pollution’ in late nineteenth-century France by drawing on printed scientific and medical sources and analysing archival material from administrations and industrial companies. ‘Pollution’ brought together various strands of water research (especially water analysis, bacteriology and hydrology) but also served as the foundation of a discourse on industrial responsibility. It was a response to the new material circulations created by industrial discharges in river. Paradoxically, it condoned industrial discharges in watercourses, which the hygienist community deemed less dangerous than domestic wastewaters. The co-production of pollution science and nineteenth-century industrial order explains why industrial water pollution was allowed to go unabated. The incapacity of the legal framework of the time to accommodate polluting discharges as legal objects and find legitimate places for them, the power politics at work around pollution and scientific controversies themselves made discharges very difficult to challenge in court. Accordingly, water pollution was regulated informally and industrialists were able to claim rivers as legitimate places for industrial matter against challenges brought up by other social actors.     

Van Beck Hall. Politics Without Parties, 1780–1791

Abstract.

Eighteenth-century English common-law courts used petit juries in civil litigation to try issues of fact or find damages after defendants defaulted. In colonial Virginia, county sheriffs impaneled potential jurors for trials of the issue; before trial, litigants selected a 12-man jury during voir dire. By contrast, juries on writs of inquiry to ascertain damages were selected solely by sheriffs and reached verdicts under the sheriff's supervision. Scholarly consensus holds juror selection to have been prejudiced, but pure probability predictions generated with hypergeometric distributions indicate that on writs of inquiry sheriffs often picked jurors in a functionally random manner. This article presents a new test for identifying bias in jury selection by identifying improbable numbers of magistrates, constables, and grand jurors.     

刑事审判监督程序存在问题的分析及改革策略

刑事审判监督程序是为了纠正错误的生效裁判而进行的特殊救济审判程序。我国法律对其规定虽有特色,但在许多方面尚不完善,其暴露出来的问题逐渐成为阻碍我国法制改革深化的因素之一。本文从提起再审的主体不当、再审的主体不当、再审的审理方式不当等几方面阐述在我国刑事审判监督程序中存在的主要问题,并针对这些问题提出当事人应该被列为可以提起再审程序之主体;再审应由原审法院的上级法院进行审理;法院应开庭审理,检察院派员监督等改革策略。     

"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.     

Changing Discourses of Marital Violence in Sweden from the Age of Reformation to the Late Nineteenth Century

This article analyses how public attention to marital violence in Sweden changed from a question of maintaining good order and ambitions to discipline self‐indulgent house tyrants into responsible masters of households in the seventeenth century, to the vanishing of the house tyrant as a cultural stereotype in favour of the female shrew in the eighteenth century, following the formal abolition of the husband's legal right to chastise his wife and an equalisation of liabilities and responsibilities. It also traces the beginnings of the social marginalisation and silencing of marital violence in the nineteenth century as a phenomenon associated with the lower classes and regulated by the law as a case for private action only when committed within the household circle.