Attempts to analyze and understand how European law developed from a set of international treaties in the 1950s to a constitutional, proto-federal legal order, accompanied by a constitutional legal discourse today, has been a key concern in European studies in the last three decades. Legal scholars, political scientists, and sociologists have explored this from their specific disciplinary viewpoints and have produced a rich literature of sophisticated theoretical as well as empirical studies. Since the mid-2000s, historians have also finally—after years of negligence—taken an interest in European law and produced a new body of archive-based studies of the history of European law from 1950 to 1993. Based on primary sources drawn from private, national, and European archives, historians have contributed with much new empirical information and managed to uncover the social, political, and legal forces that have shaped European law in a qualitatively new way. The central argument is that the constitutionalization of European law was part of the broader battle over the political and institutional soul of the European construction. Even though the ECJ successfully constructed a European legal order that resembled and worked as a proto-federal constitution, the project ultimately suffered a defeat in not being able to codify this achievement in the Maastricht Treaty as part of a broader step toward a federal Europe.
Article
The Legal History of the European Union: Building a European Constitution
Morten Rasmussen
Article
Legal Repression in Russia
Katerina Tertytchnaya and Madeleine Tiratsoo
Contemporary authoritarian regimes use the law in order to stifle their rivals’ ability and willingness to challenge the state. Research has investigated the conditions that make legal repression more likely in electoral autocracies and advanced our understanding of the ways in which legislation may be used for repressive ends in these settings. To a lesser extent, studies have also explored the consequences of legal repression in nondemocracies, focusing on its impact on dissent, opposition leaders, protesters, and civil society.
This article discusses how, in Vladimir Putin’s Russia, the law has been used to exercise political power vis-à-vis the opposition. Since the early 2000s, the Russian authorities have used legislative channels to adopt and refine laws and regulations aimed at hindering protest and inhibiting the development of an independent civil society. The discussion of the Russian case contributes to comparative research on legal repression and authoritarian politics in various ways. First, it offers important insights into the direct and indirect consequences of legal repression on dissent, the development of civil society, and public opinion toward groups targeted by legal repression. Second, the study of Russia illustrates how institutional capture and power consolidation facilitate the adoption and implementation of repressive legislation. Finally, the Russian case advances our understanding of the dynamic nature of legal repression. Reforms to laws regulating protest and civil society in Russia showcase how domestic and external events may cause legal repression to escalate. The article concludes by identifying fruitful avenues for future research on legal repression.
Article
Legislative and Judicial Politics of LGBT Rights in the European Union
Uladzislau Belavusau
Since the 1980s, the law of the European Union (EU) has become a substantial transnational source of political empowerment for LGBT actors in Europe. The Rome Treaty (1957), which established the European Economic Community, contained a gender equality clause. In the 1990s, this provision was used to protect employment rights of intersex individuals via litigation schemes based on EU law. Yet the subsequent attempts to push forward a similar legal protection for gay and lesbian equality at the Court of Justice of the European Union (CJEU), based on the EU sex-equality clause, failed. Since then, the position of the LGBT community in EU legislative politics has evolved significantly through two dimensions. First, the Amsterdam Treaty (1997) extended the number of grounds protected against discrimination in EU law, adding sexual orientation, among others, to this palette. The Amsterdam Treaty permitted the EU Council to adopt the Framework Equality Directive 2000/78/EC, an instrument of secondary Union law that has safeguarded minimum standards of protection against homophobia in relation to matters of employment in all member states. This framework EU legislation has been used by LGBT litigants in their fight for equal working opportunities and pension rights at the CJEU. Second, the introduction of EU citizenship by virtue of the Maastricht Treaty (1992) and the respective secondary law (the EU Citizenship Directive 2004/38/EC) have paved the way for status recognition of same-sex spouses in the member states that have not previously recognized same-sex partnership or marriage. The future of LGBT legislative politics and the LGBT community in Europe will largely depend on whether EU law is able to extend protection beyond the current confines of the employment area, broaden its scope to cover social dimensions such as health and education, and fully recognize same-sex marriages and partnerships throughout the EU.
Article
LGBT and Queer Politics in the Commonwealth
Matthew Waites
The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements.
The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018.
LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.
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LGBT Discrimination, Subnational Public Policy, and Law in the United States
Christy Mallory and Brad Sears
LGBT people in the United States continue to experience discrimination because of their sexual orientation and gender identity, despite increasing acceptance of LGBT people and legal recognition of marriage for same-sex couples nationwide. This ongoing discrimination can lead to under- and unemployment, resulting in socioeconomic disparities for LGBT people. In addition, empirical research has linked LGBT health disparities, including disparities in health-related risk factors, to experiences of stigma and discrimination.
Currently, federal statutes in the United States do not prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations, leaving regulation in this area primarily to state and local governments. This creates a limited and uneven patchwork of protections from discrimination against LGBT people across the country.
Despite public support for LGBT-inclusive non-discrimination laws across the country, in 28 states there are no statewide statutory protections for LGBT people in employment, housing, or public accommodations. To date, only 20 states and the District of Columbia have enacted comprehensive non-discrimination statutes that expressly prohibit discrimination based on both sexual orientation and gender identity in all three of these areas. One additional state has statutes that prohibit sexual orientation discrimination, but not gender identity discrimination, in these areas. One other state prohibits discrimination based on sexual orientation and gender identity in employment and housing, but not in public accommodations.
In states without statutes that prohibit discrimination based on sexual orientation and/or gender identity, there are other policies that afford LGBT people at least some limited protections from discrimination. In some of these states, state executive branch officials have expanded non-discrimination protections for LGBT people under their executive or agency powers. For example, in three states, state government agencies have expanded broad protections from sexual orientation or gender identity discrimination through administrative regulations. And, in 12 states without statutes prohibiting discrimination against LGBT people, governors have issued executive orders that protect state government employees (and sometimes employees of state government contractors) from discrimination based on sexual orientation and gender identity. In addition, local government ordinances provide another source of protection from discrimination; however, these laws are generally unenforceable in court and provide much more limited remedies than statewide non-discrimination statutes.
In recent years, lawmakers have increasingly attempted to limit the reach of state and local non-discrimination laws, which can leave LGBT people vulnerable to discrimination. For example, some states have passed laws allowing religiously motivated discrimination and others have passed laws prohibiting local governments from enacting their own non-discrimination ordinances that are broader than state non-discrimination laws. While most of these bills have not passed, the recent increase in the introduction of these measures suggests that state legislatures will continue to consider rolling back non-discrimination protections for LGBT people in the coming years.
Continued efforts are required at both the state and federal levels to ensure that LGBT people are fully protected from discrimination based on their sexual orientation and gender identity throughout the United States, including federal legislation and statewide bills in over half the states.
Article
LGBTI Transnational Law: Sex as Crime, Violence as Control
Berta Esperanza Hernandez-Truyol
It is impossible to divorce the criminalization of LGBTI conduct from the social, institutional, and extra-legal violence to which individuals within this community are subjected, as laws are a mirror of a society’s values. The foundation for laws that punish non-hetero-normative sexualities and gender expressions are societal constructions of hetero-normativity. Lawmakers codify their generalized views about what roles persons should fulfill or perform based on preconceptions regarding the attributes, behaviors, or characteristics of a person, class, or group.
Non-hetero-normative sexual orientations and gender identities challenge traditional notions of sexuality and gender. Violence is used as a way to control the bodies of those who exhibit non-heteronormative traits and values, as well as a form of social control to reinforce sexual and gender norms. The distinctions countries create in the targeted illegality of “male” and “female” homosexuality demonstrate the conflation of sex, gender identity, and sexual orientation.
Laws that ban expressive conduct and effectively eliminate lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons from public discourse have historical roots in Christian and Muslim religious traditions. Whether codified or not, violence against LGBTI individuals is a consequence of deeply embedded gender inequality. Such inequality manifests in social and physical violence that ultimately punishes, controls, and erases LGBTI persons. Although international bodies have reacted against such violence by ratifying legal instruments to protect the LGBTI community, changing social conditions and preconceptions has proven to be the most effective route to protecting LGBTI persons’ human rights.
Article
LGBTQ Family Law and Policy in the United States
Erin Mayo-Adam
There is a growing body of research on law and policy concerning lesbian, gay, bisexual, transgender, and queer (LGBTQ) family law and policy. LGBTQ families have existed for centuries despite laws and policies that criminalize their relational practices. However, the legal landscape has shifted a great deal over the past few decades, in large part due to the increased visibility of LGBTQ kinship networks and new constitutional protections for same-sex marriage. With this said, legal protections for LGBTQ families vary widely by state, especially parental, adoption, and foster care rights. Historically, family law and policy has fallen within the realm of state power, with some important exceptions (e.g., the Supreme Court has recognized a fundamental right to parent for legal parents). For this reason, there are broad protections afforded to LGBTQ kinship networks in some states, especially those with large urban and more liberal populations, and barriers that stand in the way of LGBTQ parental rights in other states that are more conservative or rural. The legalization of marriage equality in Obergefell v. Hodges did standardize some protections for same-sex couples in traditional relationships across the United States. Yet the case also presents new problems both for LGBTQ families that are more heteronormative and those that are not because it fails to recognize a fundamental right to parent for LGBTQ people who create non-biological families and live non-traditional lives.
In addition to these legal and policy changes, social scientists have used both qualitative and quantitative methodologies to shed light on the problems faced by LGBTQ families politically and legally. Researchers have examined how LGBTQ families attempt to protect their ability to parent in family court, how LGBTQ kinship networks identify innovative legal and political strategies aimed at overcoming barriers to legal recognition, and how LGBTQ identity is both constituted and made invisible through family law. Furthermore, scholars have produced a wealth of research refuting the myth that LGBTQ people are inadequate parents since the late 1980s and this research has been used in court cases across the United States to facilitate the legal recognition of LGBTQ families. Despite this research, gaps in both scholarship and legal recognition remain. Scholarship remains startlingly sparse given the legal and political barriers that stand in the way of LGBTQ family recognition, especially for LGBTQ people of color and trans and queer people. In order to address this gap, scholars should devote more resources to research on families that include LGBTQ people of color and trans and queer people, research on non-traditional queer kinship networks, and research on the unique ways that LGBTQ families are responding to political and legal barriers at the local level.
Article
LGBT Rights and Theoretical Perspectives
Francis Kuriakose and Deepa Kylasam Iyer
The question of LGBT rights was first examined as part of gender and sexuality studies in the 1980s, predominantly in the United States. This was a result of the LGBT movement that had articulated the demand for equal rights and freedom of sexual and gender minorities a decade before. Since then, the examination of LGBT rights has traversed multiple theoretical and methodological approaches and breached many disciplinary frontiers. Initially, gay and lesbian studies (GLS) emerged as an approach to understand the notion of LGBT identity using historical evidence. GLS emphasized the objectives of the LGBT movement in articulating its identity as an issue of minority rights within the ambit of litigation and case law. However, the definition of LGBT identity as a homogeneous and fixed category, and the conceptualization of equality rights as the ultimate project of emancipation, was critiqued on grounds of its normative and assimilationist tendencies. Queer theory emerged in the 1990s as a counter-discourse to GLS, using the individual-centric postmodern technique of deconstruction as the method of analysis. This approach opened up scope for multiple identities within the LGBT community to articulate their positionality, and reclaim the possibilities of sexual liberation that GLS had previously obscured.
Subsequent scholarship has critiqued GLS and queer theory for incomplete theorization and inadequate representation, based on four types of counter-argument. The first argument is that queer theory, with its emphasis on self as an alternative for wider social interaction, concealed constitutive macrostructures such as neoliberal capitalism, as well as the social basis of identity and power relations. The second argument highlights the incomplete theorization of bisexual and transgender identities within the LGBT community. For example, understanding bisexuality involves questioning the universalism of monosexuality and postmodern notions of linear sexuality, and acknowledging the possibility of an integrated axis of gender and sexuality. Theorization of transgender and transsexual rights requires a grounded approach incorporating new variables such as work and violence in the historiography of transgender life. The third critique comes from decolonial scholarship that argues that intersectionality of race, gender, class, caste, and nationality brings out multiple concerns of social justice that have been rendered invisible by existing theory. The fourth critique emerged from family studies and clinical psychology, that used queer theory to ask questions about definitions of all family structures outside the couple norm, including non-reproductive heterosexuality, polyamorous relationships, and non-marital sexual unions. These critiques have allowed new questions to emerge as part of LGBT rights within the existing traditions, and enabled the question of LGBT rights to be considered across new disciplinary fronts. For example, the incorporation of the “queer” variable in hitherto technical disciplines such as economics, finance, and management is a development of the early-21st-century scholarship. In particular, the introduction of LGBT rights in economics to expand human capabilities has policy implications as it widens and mainstreams access of opportunities for LGBT communities through consumption, trade, education, employment, and social benefits, thereby expanding the actualization of LGBT rights.
Article
The Lisbon Treaty
Jacques Ziller
The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.
Article
Lithuania and the European Union
Ramūnas Vilpišauskas
For Lithuania, the geopolitical motive to join the European Union (EU) in order to prevent a repetition of the 1940s occupation has been as important as a motive to “return to Europe.” This motivation to become part of the West led the country’s political elites to conceptualize accession into the EU as an important part of the transition reforms which were expected to modernize Lithuania’s economy, public administration, and governance as well as contribute to the country’s security and create conditions for economic catching up. Membership in the EU, accession into NATO, and good neighborly relations became the three cornerstones of Lithuania’s foreign policy since the early 1990s and enjoyed broad political support. It was this support that arguably allowed for the maintenance of political and administrative mobilization and consistency of preparations for the membership during the pre-accession process. Public support for the EU membership remained above the EU average since accession in 2004.
Around the time of accession, a new concept of Lithuania as “a regional leader” was formulated by the core of the nation’s foreign policy makers.
The concept of a regional leader implied active efforts of mediating between Eastern neighbors and the EU, often in coordination with Poland, which was driven by the desire to stabilize the Eastern neighborhood and advance relations between Eastern neighbors and the EU and NATO. Although coalition building within the EU has been fluctuating between a strategic partnership with Poland and Baltic-Nordic cooperation, also most recently the New Hanseatic league, attention to the Eastern neighborhood and geopolitical concerns originating from perceived aggressive Russian policies remained a defining characteristic of the country’s European policy independent of personalities and political parties, which have been at the forefront of policy making.
Completion of integration into the EU, in particular in the fields of energy and transport, as well as dealing with “leftovers” from accession into the EU, such as joining the Schengen area and the euro zone, became the other priorities since 2004.
Lithuania has been one of the fastest converging countries in the EU in terms of GDP per capita since its accession. However, membership in the EU Single Market also had controversial side effects. Relatively large flows of emigrants to other EU member states generated political debates about the quality of governance in Lithuania and its long-term demographic trends such as a decreasing and aging population. Introduction of the euro in 2015 was perceived by the public as the main factor behind price rises, making inflation the most important public issue in 2016–2018. High per capita income growth rates as well as the prospect of the United Kingdom exiting the EU triggered discussions about excessive dependency on EU funding, the potential effects of its decline after 2020, and sources of economic growth. There are increasingly divergent opinions regarding further deepening of integration within the EU, especially in regard to alignment of member states’ foreign and security policies as well as tax harmonization. Still, membership in the EU is rarely questioned, even by those who oppose further integration and advocate a “Europe of nations.”
Article
Litigating Transgender Employment Rights in the United States
Susan Gluck Mezey
Discrimination against transgender or gender nonconforming individuals in the workplace affects hiring, firing, promotions, salaries, and benefits. Most states have no laws prohibiting employment discrimination based on gender identity, and, in the absence of federal law, transgender workers have turned to the courts to seek equal rights on the job. Transgender plaintiffs often file suit under Title VII of the 1964 Civil Rights Act, the law prohibiting sex discrimination in employment. The defendants argue that since the statute does not explicitly ban discrimination on the basis of gender identity, Congress did not intend to include transgender or gender nonconforming individuals as members of a class protected by Title VII. The cases revolve around the question of whether the ban on sex discrimination in the law should be narrowly construed to apply to men and women as determined by their biological status or whether it should be broadly construed to prohibit discrimination against individuals because of their gender identity or gender expression.
Prior to 1989, suits brought by transgender plaintiffs were dismissed by judges who agreed with employers that Congress did not intend Title VII to guarantee their employment rights. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that the statute forbids an employer from making a negative employment decision because an employee’s behavior does not conform to stereotypical norms of behavior.
Hopkins set the stage for the next several decades of litigation over the employment rights of transgender employees, and, although the courts were initially reluctant to allow transgender plaintiffs to benefit from Title VII, within a few years, most broadened their interpretation of the law. Over time, the courts adopted two theories: first, the gender nonconformity approach in which discrimination based on sex stereotyping violates Title VII; second, the per se approach in which discrimination on the basis of gender identity is equated with discrimination under Title VII.
In 2012, the Equal Employment Opportunity Commission (EEOC) adopted both theories of Title VII in Macy v. Holder (2012). In 2014, the Justice Department formally committed itself to interpreting Title VII to apply to gender identity. In October 2017, the department shifted its position on Title VII, negating the per se theory of gender identity and emphasizing that the statute only applies to employer actions based on biological differences between men and women.
In addition to Title VII claims, transgender plaintiffs have filed job discrimination actions under the Americans with Disabilities Act (ADA), the law prohibiting discrimination against individuals because of their disabilities. Although the statute explicitly excludes gender identity disorder, two federal district courts have interpreted it to cover transgender persons with disabilities, with a third disagreeing. Tying claims to the ADA has benefits as well as drawbacks.
Article
Marriage Equality Policy Diffusion
Helma G. E. de Vries-Jordan
Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.
Article
Non-State Policing in Africa
S.J. Cooper-Knock
Studies of policing go to the heart of debates over public authority, violence, and order. Across the globe, the state cannot be assumed to be at the center of policing practices or their authorization. Across Africa, a diverse mix of individuals, groups, and corporations are involved in policing people’s everyday lives and the spaces in which they live them. Categorizing the different groups and individuals in this varied landscape is no simple task. Even drawing lines between “state” and “non-state” policing is not as easy as it may first appear. In reality, any constructed boundary is likely to be more porous and fluid than imagined. In some cases, this is because the service providers become entangled with the state. State officials, for example, may moonlight for other policing organizations. Conversely, state institutions might collaborate with, or outsource work to, civilian and corporate actors. In other cases, groups who identify as non-state actors may still mimic the symbols, materials and practices of the state in an attempt to bolster their own claims to public authority.
Faced with the difficulty of sustaining any simple divide between categories such as “state” or “non-state” policing scholars have taken a variety of analytical routes: refining their definitions; developing “ideal types” against which messy empirical realities can be juxtaposed, or moving away from bounded typologies in an attempt to understand group and individuals on their own terms. Taking the latter course, this article highlights the variety of putatively non-state policing organizations and formations across the continent. In doing so, it highlights that the presence of private security corporations, rebel groups, neighbourhood watches, or so-called mobs are no simple indicator of the absence or weakness of state institutions and imaginaries. Understanding everyday negotiations over statehood and sovereignty requires a more nuanced approach. When this path is taken, and policing landscapes are studied in all their complexity, we gain crucial insights into the ways in which being and belonging, law and order, power and legitimacy, privilege and oppression function in any given context.
Article
Political Contempt and Religion
Nathan C. Walker
A society’s political and legal treatment of religion is a distinct indicator of the health of a democracy. Consequently, high levels of political and legal contempt for religion in the United States can be an indicator that partners in American democracy may be going through a divorce. By drawing upon studies that measure voter attitudes and behaviors, as well as research that tracks the levels of social hostilities and violence toward religion, students of democracy see into two of society’s most revealing mirrors: political rhetoric and the nation’s laws. These reflections can unveil powerful questions about the true character of a nation: will democracy rule from a place of contempt for the religious other, or from a state of passive political tolerance, or from a constitutional commitment to actively protect the rights of those with whom we disagree? Theories of political tolerance and psychological studies of contempt prove helpful in examining contemporary levels of religious animosity in politics and law. The Religious Contempt Scale, as introduced in this essay, gauges a society’s willingness to tolerate the religious other. When special attention is given to the frequency and degrees of severity of expressions of contempt, it becomes clear that contempt has political utility: to motivate the intolerant to gain access to power and, in turn, to motivate those who are intolerant of intolerance to remove them.
Article
The Politics of Language Education in Africa
Russell H. Kaschula and Michael M. Kretzer
Language policies in sub-Saharan African nations emerge out of specific political, historical, socioeconomic, and linguistic conditions. Education plays a crucial role for all spheres of language policy. Policies either upgrade or downgrade indigenous languages through their application at various educational institutions. The most significant example is the selection of the language(s) used as languages of learning and teaching at higher-education institutions. The region’s colonial history also influences the language policies of the independent African states. Language policy in Senegal is an example of a francophone country focusing on a linguistic assimilation policy in which minor reforms in favor of indigenous languages have taken place. Rwanda’s language policy is unique as the former francophone nation now uses English as an exoglossic language in a type of hybrid language policy. Botswana is an example of an anglophone country that follows a language policy that is dominated by a very close connection to the notion of nation-building through its concentration on a single language, Setswana, alongside English. Tanzania is an anglophone African country whose policy focuses on Kiswahili, which is one of the very few indigenous and endoglossic languages. Kiswahili is broadly used in Tanzanian educational institutions until the tertiary level, but its use as medium of instruction focuses on the primary level. South Africa demonstrates the very close relationship between general political decisions and language policy and vice versa. Language policy decisions are never neutral and are influenced by the politics of a specific country. As a result, individual and societal language attitudes influence language policies. In addition to this, the overt and official language policy on a macro level may differ from the implementation of such policies on a micro level. At the micro level, practice can include covert language practices by various stakeholders.
Article
The Politics of Prosecuting Genocide and War Crimes in Asia
John Ciorciari
Delivering justice for genocide, war crimes, and other mass atrocities inevitably presents steep political challenges. That has certainly been true in Asia, where relatively few such international crimes have been prosecuted. Many Japanese were tried for war crimes following the Second World War, but for decades thereafter, the region saw only a few ill-fated efforts to advance justice for mass crimes. Some political space for accountability opened after the Cold War, enabling the creation of tribunals in Timor-Leste, Cambodia, and Bangladesh to address some of the many instances of impunity in Asia. Some observers have welcomed these trials as important efforts to advance accountability in a region rife with impunity. Still, the design and performance of these tribunals have reflected the difficulty of subjecting politically empowered or protected actors to justice. In each instance, trials have focused on suspects defeated at the ballot box or on the battlefield, prompting charges of victor’s justice. In other cases, including Indonesia, Sri Lanka, and Myanmar, even mounting an accountability process has proven a formidable challenge. In a region where Westphalian sovereignty and the norm of noninterference are strong, the will of incumbent domestic authorities remains the political linchpin for accountability efforts. In Asia as elsewhere, prosecuting international crimes requires exploiting windows of political possibility, although typically at the cost of accepting highly selective justice.
Article
Prosecutors: A Cross-National Political Perspective
Stefan Voigt
Over the past decades, prosecutors have become more and more powerful within criminal justice systems. Yet, there is still relatively little empirical research on prosecutors. Most of the literature focuses on the analysis of the prosecutorial system of a single country. Cross-country analyses are close to nonexistent.
From a comparative perspective, the various possible means to establish the independence of prosecutors from government and at the same time securing their accountability to the law are of paramount interest. Regarding the former, appointment procedures, possible career paths, and the degree to which prosecutors are subject to orders both from within the prosecution agency as well as from without (e.g., the ministry of justice) are of special concern. With regard to prosecutorial accountability, it is the legality principle (also known as mandatory prosecution), the issue whether prosecutors enjoy a monopoly in the prosecution of criminals, whether decisions not to prosecute a suspect are subject to judicial review, and the transparency of the behavior of prosecutors that are key.
Regarding the organizational design choices of prosecution agencies that have been implemented across countries, four different clusters can be identified. The four clusters perform markedly different in terms of the rule of law levels associated with them.
The consequences of institutional design choices are surprisingly small. The de facto organization of prosecutors turns out to be far more relevant for outcomes than what is prescribed de jure. Countries in which prosecutors enjoy a high degree of de facto independence suffer significantly less from corruption than countries in which this is not the case.
Given that the institutional design choices of prosecutors are of limited relevance for their de facto situation, the question is: What factors determine the de facto independence and accountability of prosecutors? It turns out that some rather stable and immutable factors are decisive: Common law legal systems do better than those belonging to the civil law legal families. Generalized trust also plays an important role. If most people believe that others can be trusted, very specific rules for the behavior of prosecutors may seem unnecessary.
A number of trends regarding the organization of prosecutors can be observed in many countries, among them the increased reliance on trial waiver systems, bonus payments to incentivize prosecutors, the founding of prosecutorial councils, and prosecutorial activism. It is questionable whether the first three of these trends will increase the efficiency of prosecution agencies; rather, they are likely to lead to a deterioration in the overall rule of law score of those countries relying on them.
Article
Public Reason and Contemporary Political Theory
Steven Wall
The publication of John Rawls’s Political Liberalism put public reason squarely on the agenda of contemporary political theory. Ever since, it has been a central topic in the field. Although Rawls developed a distinctive account of public reason, his account is but one among many. Indeed, some commentators have insisted that public reason is a very old notion, one that can be found in the political writings of Hobbes, Locke, Rousseau, and Kant, for example. Public reason has a distinctive subject matter. It applies to the common good of a modern political society and the political institutions that serve that common good, and it contrasts with forms of reasoning that apply to less inclusive associations and communities that exist within a modern political society, such as churches, voluntary clubs, or professional associations. Public reason also contrasts with applications of reason that are not transparent and/or acceptable to adult citizens of modern political societies. The demands of transparency and acceptability have proven to be complex and contentious, and rival articulations of these notions have generated rival accounts of public reason. Public reason informs public political justification, and proponents of public reason often hold that public, political justification of at least the fundamental political arrangements of a political society is necessary for its political order to be legitimate. The reasons for insisting on public reason and the reasons for rejecting it are diverse. Common to all defenses of public reason is the thought that it represents a fitting response to the fact of intractable disagreement in modern political societies.
Article
Punishment and Social Control in Historical Perspective
Michele Pifferi
Punishment has historically functioned as a key factor of social control. At different times, its mechanisms, techniques, and purposes have varied significantly, changing the authority and legitimacy of those who have sought to shape and govern a social order. The sociological notion of social control elaborated at the beginning of the 20th century refers to multiple elements that cannot simply be reduced to law, criminal law in particular. However, especially after the revisionist turn of the 1970s, the idea of social control as a coercive response to deviant behaviors through penal and institutionalized mechanisms has made inroads into research on the history of criminal justice. At first, the origins and development of prisons in late modernity as models of punishment in place of medieval corporal chastisements were scrutinized. The penal shift from the body to the soul, beneath its rhetoric of rationalization and humanization, was driven by conscious projects for controlling and disciplining a changing society by means of institutions of confinement. Although this interpretation was occasionally criticized, it contributed to the development of a critical historical analysis of criminal law in which the notion of social control can be profitably applied to the study of different periods and features of the penal apparatus. A first example is the age of medieval ius commune (12th–16th centuries), when emergent sovereign entities characterizing the pluralistic political scenario before the formations of modern states extensively resorted to a strategic use of criminal law to impose their hegemonic powers. A second case is penal modernism. In the last decades of the 19th century, when state monopolies of violence were undisputed and imprisonment was largely imposed, criminological positivism brought about a rethinking of the rationale of punishment based on the idea of social defense, which also implied a reconceptualization of criminal law as a means of social control.
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Religious Regulation in India
Kristina M. Teater and Laura Dudley Jenkins
Freedom of religion is a constitutional right in India, but this religiously diverse democracy regulates religion in several ways, including enforcing religious personal laws, regulating religious minority educational institutions, monitoring conversions, limiting religious appeals during political campaigns, and outlawing acts that outrage religious feelings. The 42nd constitutional amendment in 1976 added the word “secular” to the Indian constitution, which provides a distinctive model of religion-state relations and regulation that is rooted in historical struggles with colonial rule and abundant religious diversity. The “personal law” system grants major religious communities distinct family laws. Religious minorities have regulated autonomy in the sphere of education based on constitutional commitments to minority colleges and educational institutions. The religious freedom clause in the Indian constitution is one of the most comprehensive in the world, yet several state-level “freedom of religion” acts prohibit “forcible” or “induced” conversions. Affirmative action or “reservation” policies also necessitate regulating conversions, as low castes lose their eligibility upon conversion to Islam or Christianity. Appealing for votes on the basis of religion or caste is a “corrupt practice.” A colonial-era statute continues to outlaw “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” Constitutional and state regulations of cow slaughter also protect the religious beliefs of some Hindus. Whether defending “religious freedom” by limiting conversions, or criminalizing insults to religious beliefs, laws in India to “protect” religions and religious persons at times threaten the practice and expression of diverse religious perspectives.
