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Article

The Political Economy of LGBT Rights  

Scott N. Siegel

Equal treatment for members of the lesbian, gay, bisexual, and transgender (LGBT) community has improved at a rapid pace around the world since the gay rights movement first rose up to become a salient global force for change. With important regional exceptions, laws criminalizing same-sex sexual relations have not only come down in multiple countries, but same-sex couples can now also construct families in many advanced industrialized countries. Public acceptance of homosexuality, even in some non-Western countries, has increased dramatically. Yet, within those general trends hides the remarkable unevenness in the spread and adoption of policies fostering legal, social, and economic equality for LGBTQ communities around the world. Policy change toward more equal treatment for sexual minorities is concentrated in the developed world and within the cisgender gay and lesbian communities in particular. The existing literature in policy change shows the importance of transnational activists, changing international norms, and increasing levels of secularization have made this possible. But the effectiveness of these factors rests on an underlying foundation of socioeconomic factors based on economic and social development that characterizes advanced industrialized states. There is an uneven distribution of resources and interests among pro and anti-LGBT activist groups alike, and the differing levels of economic development in which they operate that explains the decidedly uneven nature of how LGBTQ human rights have advanced in the past 50 years. In addition, new political parties and activist organizations have emerged to lead the backlash against LGBTQ rights, showing progress is neither inevitable nor linear. In addition, serious gaps in what we know about LGBT politics remain because of the overwhelming scholarly focus on advanced industrialized states and policies that benefit the cisgender, gay and lesbian middle class in primarily Western societies. The study of LGBT politics in non-Western and developing countries is woefully neglected, for reasons attributed to the nature of the research community and the subject area. In the developed world, greater attention is needed to inequality within the LGBTQ community and issues beyond same-sex marriage. Finally, issues of intersectionality and how different groups within the LGBT community have enjoyed most of the benefits of the gay rights movement since its takeoff more than 50 years ago.

Article

Coming Out, Intergroup Relations, and Attitudes Toward LGBT Rights  

Mark R. Hoffarth and Gordon Hodson

Intergroup relations and contact between groups has historically been considered a mechanism to promote support for LGBT (lesbian, gay, bisexual, and transgender) rights. However, LGBT identities are often concealable, and stigma discourages members of the LGBT community from disclosing that they are LGBT, which may prevent contact. Some subsets of the LGBT population make up a small percentage of the overall population, which may also decrease the quantity of contact. As such, the process of coming out to friends, relatives, and coworkers has been a common strategy of the modern LGBT movement. The strategy could be effective because the intergroup contact literature has found support for intergroup contact decreasing prejudice in meta-analyses. At the same time, researchers have challenged the assertion that intergroup contact promotes social change because intergroup contact is sometimes negative, or may be impractical or avoided, positive attitudes can coincide with acceptance of inequality, and intergroup contact may have unintended negative side effects. Research has generally found support for the notion that intergroup relations are more positive when there is greater contact. For LGBT people greater contact has been associated with decreasing anti-LGBT prejudice and increasing support for LGBT rights. However, similar to other domains of contact, the influence of LGBT contact is contextually sensitive, and a combination of psychological and structural barriers can decrease or prevent the positive effects of intergroup contact. There are strategies which may overcome these limitations, through policies (e.g., protection against discrimination), promoting types of contact that promote social change as opposed to merely positive attitudes, secondary transfer of contact effects, imagined contact, indirect forms of contact, and positive media representations of LGBT people. Gaps in the literature include a relative lack of research on contact with members of the LGBT community other than gays and lesbians (particularly non-cisgender people), intergroup contact between members of different subsets of the LGBT community, and a need for experimental and/or intervention-based research.

Article

Measuring Violations of Human Rights Standards  

Mark Gibney, Linda Cornett, Peter Haschke, Reed M. Wood, and Daniel Arnon

Although every violation of international human rights law standards is both deplorable and illegal, one of the major advances in the social sciences has been the development of measures of comparative state practice. The oldest of these is the Political Terror Scale (PTS), which provides an ordinal measure of physical integrity violations carried out by governments or those associated with the state. Providing data from the mid-1970s to the present, the PTS scores the human rights practices of more than 190 countries on a scale of 1–5, with 1 representing “best practices” and 5 indicating gross and systematic violations. There are two different sources for these scores: U.S. State Department Country Reports on Human Rights Practices and the Amnesty International Annual Report. Although human rights have traditionally been associated only with the state, individuals can also be denied human rights protection by nonstate actors. To measure this, the Societal Violence Scale has been created to analyze three sources of physical integrity violations: the individual, corporate or criminal gang activity, and armed groups.

Article

Property and Territorial Rights in Political Philosophy  

Kim Angell

To have property rights over X is to have rights to determine, in some respect, what shall happen to X, for example a piece of land. To have territorial rights is to have rights to make, enforce, and adjudicate the law within a geographical area. Property and territorial rights thus seem closely related, and philosophical accounts reveal various interesting connections between these bundles of rights—both in their nature and justification. A significant division, which we find in both old and new accounts—of property as well as territory—originates in the diverging political philosophies of John Locke and Immanuel Kant. Lockean accounts regard property and territorial rights as natural. People may acquire both without the prior existence of an adjudicating political authority. Kantian accounts, however, regard property rights as pure legal conventions. Non-existent outside civil society, they must be fully constructed by a state with territorial (jurisdictional) rights. Further divisions exist within Lockean and Kantian theories, and all the most prominent theories—of property as well as territorial rights—face significant unresolved philosophical challenges.

Article

Transgender Rights Interest Groups in the United States  

Anthony J. Nownes

Although the Trump Administration has been decidedly unfriendly to transgender Americans, there is no question that transgender people have made substantial policy, political, and societal gains in recent years. These gains are the result partially of the activities of political organizations that advocate on behalf of transgender Americans. As of 2019, there were approximately 20 nationally active transgender rights interest groups in the United States, including several relatively well-resourced professional organizations. There are also dozens of active state, local, and regional transgender rights organizations. What have we learned about transgender rights interest groups? First, transgender rights organizing began in the mid-1960s but did not really get off the ground until the mid-1990s. Second, there are probably more transgender rights interest groups operating in the United States today than there ever have been. Third, as the number of stand-alone transgender rights groups has grown, so has the number of broad-based LGB groups who have “added the T,” that is, added advocacy for transgender rights to their missions. Although the scholarly literature on transgender rights interest groups is severely limited, a number of sources, including primary source materials available through transgender and LGBT archives, historical treatments of transgender politics, and the writings and works of transgender activists, shed light on the history and activities of these groups.

Article

An International LGBT Movement  

Ryan Thoreson

As lesbian, gay, bisexual, and transgender (LGBT) advocates around the globe have fought to gain rights and recognition, their shared endeavors and coordinated activism have given rise to an international LGBT movement. Over the past century, advocates around the world have recognized common aims and collaborated in formal and informal ways to advance the broader cause of sexual equality worldwide. Advocates in different contexts have often connected their struggles, borrowing concepts and strategies from one another and campaigning together in regional and international forums. In doing so, they have pressed for goals as diverse as the decriminalization of sexual activity; recognition of same-sex partnerships and rainbow families; bodily autonomy and recognition for transgender and intersex people; nondiscrimination protections; and acceptance by families, faith communities, and the public at large. At times, the international LGBT movement—or, to be more accurate, LGBT movements—have used tactics as diverse as public education, lobbying and legislative campaigns, litigation, and direct action to achieve their aims. The result has been a gradual shift toward recognizing LGBT rights globally, with these rights gaining traction in formal law and policy as well as in public opinion and the agendas of activists working for human rights and social justice. The movement’s aims have also broadened, being attentive to new issues and drawing common cause with other campaigns for bodily autonomy and equal rights. At the same time, gains have triggered ferocious backlash, both against LGBT rights and against broader efforts to promote comprehensive sexuality education, access to abortion, the decriminalization of sex work, and other sexual rights. Understanding this advocacy requires consideration of important milestones in global LGBT organizing; how LGBT rights have been taken up as human rights by domestic, regional, and international bodies; and some of the main challenges that LGBT advocates have faced in contexts around the globe.

Article

Brazil’s Evangelical Caucus  

Pedro A. G. Dos Santos and Linsey Moddelmog

Established in 2003, the Frente Parlamentar Evangélica no Congresso Nacional (National Evangelical Front in the National Congress) unites evangelical members of the Brazilian National Congress to pursue political agendas informed by their shared religious beliefs, as opposed to traditional party affiliation or political coalition. The rise in power and influence of the Evangelical Caucus is related to the transformation of Brazilian society from centuries of Catholic dominance to an early 21st century where around one-quarter of the population identifies as evangelical. Even though this group is known for its heterogeneity, as the Evangelical Caucus continues to increase in numbers and influence, the group may be able to better influence policymaking related to morality politics and views shared among evangelical Christian voters.

Article

Labor and the Global Political Economy  

Layna Mosley

What does current scholarship suggest about the relationship between the rights of workers in the developing world and the global economy? Contemporary multinational production includes both direct ownership of manufacturing facilities abroad and arm’s length subcontracting and supply chain relationships. Thus far, political economists have paid greater attention to the former; there are various reasons to expect that multinational firms may have positive, rather than negative, effects on workers’ rights. For instance, some multinationals are interested in hiring at the top end of local labor markets, and high standards serve as a tool for recruitment and retention. Multinationals also could bring “best practices” from their home countries to their local hosts, and some face pressure from shareholders and consumers—given their visibility in their home locations—to act in “socially responsible” ways. Hence, while directly owned production does not automatically lead to the upgrading of labor standards, it can do so under some conditions. Supply chain production is likely more mixed in its consequences for workers. Such production involves arm’s length, subcontracted production, in which multiple potential suppliers typically compete to attract business from lead firms. Such production often includes more labor-intensive activities; minimizing costs (including labor costs) and lowering production times can be key to winning subcontracts. We may therefore expect that subcontracted production is associated with greater violations of labor rights. It is worth noting, however, that research regarding the consequences of supply chain production—and the conditions under which such production may lead to improvements for workers—is less advanced than scholarship related to foreign direct investment. The governance of labor rights in a supply chain framework is marked by several challenges. It is often difficult for lead firms, even those that wish to protect worker rights, to effectively monitor compliance in their subcontractor facilities. This becomes more difficult as the length and breadth of supply chains grow; private governance and corporate social responsibility have therefore not always lived up to their promise. Rather, achieving labor protections in a supply chain framework often requires both private and public sector efforts—that is, governments that are willing to privilege the rights of workers over the rights of local factory owners and governments that are willing to enact and implement legal protections of core labor rights. Such government actions, when coupled with private sector–based capacity building, codes of conduct, and regular monitoring, offer the most promise for protecting labor rights within global supply chains. Finally, governments of developed countries also may play a role, if they are willing to credibly link working conditions abroad with market access at home.

Article

Constitutional Law  

Axel Tschentscher

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

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

Federalism and LGBT Politics and Policy in the United States  

Jami K. Taylor, Donald P. Haider-Markel, and Daniel C. Lewis

The LGBT policymaking process in the United States is fragmented and LGBT citizens face different policy contexts depending on which local government and state they reside in. With a lack of national consensus on LGBT rights and the country’s federal political system, which allows states to have substantial policymaking authority, policymakers have created a diverse and decentralized set of policies. Indeed, this governmental system significantly shapes the opportunity structure for the adoption of LGBT inclusive policy. It allows for remarkable LGBT rights advances in some states and localities, but little to no progress in others. States in the Northeast and on the West Coast tend to have more LGBT inclusive policies than those in the South or Midwest. In some instances, localities in states that lack inclusive policies engage in compensatory policymaking to provide added LGBT protections. However, the ability of localities to do this is shaped by state law concerning home rule authority and whether the state legislature has decided to proscribe such action. When trying to advance LGBT rights policy, advocates must venue-shop for favorable policymaking circumstances. Favorable circumstances commonly include institutional control by Democrats or municipalities with greater diversity, higher education levels, and more people engaged in management, business, science, and arts occupations. Opponents to LGBT rights are engaged in venue-shopping as well, but they normally hold the defensive advantage of maintaining the status quo. Both proponents and opponents of LGBT rights have used the court systems of states and the national government to shape LGBT rights related policy.

Article

Global Anti-LGBT Politics  

Barry D. Adam

Anti-LGBT politics around the world have undergone a major transformation over the last half century. While European powers once held themselves up as defenders of Christian morality and patriarchy, characterizing Asia, Africa, and the Americas as locations of sexual disorder, in the 21st century many of the countries of the Global South construct LGBT sexualities as pathological, threatening, or criminal, while many countries of the Global North incorporate sexual orientation in a discourse of human rights, democracy, and individual freedom. Many of the social forces of nationalism and populism of the early 21st century place the well-being of LGBT citizens in jeopardy, and conflicts between these divergent visions of the good society continue to have grave consequences for LGBT people around the world.

Article

Africa’s LGBT Movement and Interest Groups  

Oluwafemi Adeagbo and Kammila Naidoo

The dominant belief in Africa is that same-sex intimacy is a child of modern civilization and Western culture. Hence, we see a high level of homophobia and continuous policing of same-sex relationships in most African countries, including those that have decriminalized them. Over time, different scholarly discourses have emerged about homosexuality in Africa. Although some writers believe that same-sex intimacy is fundamentally un-African, others argue that same-sex intimacy is inherent in African culture. Arguably, the introduction of Western religion, such as Christianity, which forms part of the colonization agenda, favors the monogamous, heterosexual relationship (the basis of the “ideal family unit”) as the acceptable natural union while any relationship outside it is regarded as unnatural. Given deteriorating socioeconomic and political situations in Africa, political leaders often find it expedient to use religious-based homophobic narratives to distract their impoverished citizens and muster popular support. Put together, this has led to the criminalization of same-sex unions in most African countries. Modern discourses in Africa on gender equality and sexual freedoms reveal more liberal attitudes, but the same cannot be said about how same-sex desire is viewed. Toleration of same-sex intimacy is seen as a threat to the dominant African definition of marriage, family, and patriarchal gender and power relations. Despite the prevalence of homophobia, the establishment of gay networks and movements that championed the liberation struggles of sexual minorities in South Africa from the apartheid to postapartheid era have sharpened the sense of belonging of LGBTIA groups. While some countries (e.g., South Africa, Lesotho, Cape Verde, Rwanda, Mali, and Mozambique) have abandoned sodomy laws that criminalized same-sex relationships (often after much pressure was exerted), others (e.g., Chad, Sudan, Nigeria, Ghana, Egypt, Tunisia, Tanzania, Uganda, and Mauritania) have upheld the laws with stiff punishment—prison terms up to 14–30 years or death sentences for the crime of being homosexual. The first half of 2019 raised some hopes about LGBTIA rights in Africa when Angola (January 2019) and Botswana (June 2019) decriminalized homosexuality. However, Kenya, which had previously shown a “glimmer of hope” in decriminalizing same-sex relationships, upheld laws that criminalize homosexuality in May 2019. Currently, more than 30 of the 54 recognized African countries still have laws (with harsh punishments or death) that outlaw consensual same-sex relationships. Both theoretical and empirical insights into the current state of Africa’s LGBTIA rights and scholarship are discussed.

Article

Queer Activism in Africa  

Ellie Gore

From Pride marches in Entebbe to legal battles in Lilongwe, the struggle for queer liberation in Africa has intensified over the past two decades. This has given rise to diverse formations of queer activism and organizing across the African continent and, in turn, to a burgeoning academic literature on the politics and practices of queer African activism. From a legal perspective, this period has seen progress in the status of queer or LGBTI (lesbian, gay, bisexual, transgender, and intersex) rights in some parts of the continent. Elsewhere, this has paralleled a rise in forms of state-sponsored homophobia. The Ugandan government’s Anti-Homosexuality Bill is one prominent example, which garnered international notoriety in 2009. Focusing on waves of political homophobia in countries like Uganda, some Western media commentators have characterized Africa as homophobic, a continent where queer individuals face violence and persecution. Yet heightened international concern over the plight of queer Africans has not always been accompanied by an understanding of the movements, alliances, organizations, and activists working on these issues on the ground, nor has it incorporated the voices and experiences of queer Africans themselves. Thus, narratives of “homophobic Africa” belie the multiple, far-reaching ways Africans are coming together to contest homophobia, unsettle heteronormativity, and assert their rights. Among this growing array of activist groups are the Gay and Lesbian Coalition of Kenya, Freedom and Roam Uganda, the Association of LGBTI People in Zimbabwe (GALZ), and LEGABIBO (Lesbians, Gays & Bisexuals of Botswana), to name just a few. In the academic literature, scholars have converged around a key set of issues and debates in an attempt to document and understand the character of contemporary queer politics and activism in Africa. This includes debates over language, naming practices, and terminology and discussions of political and religious homophobia, processes of globalization, the impact of HIV interventions and international aid funding, and the political economy of development. The complexity of these issues defies generalization and necessitates a concern for specificity: for an understanding of the shifting social, cultural, economic, and political contexts in which struggles over queer liberation and LGBTI rights are taking place in Africa; of the historical legacies of colonialism and uneven patterns of global development; and of the opportunities and constraints shaping queer activism in each setting. Against this background, scholars engaged in the study of queer activism must interrogate whose experiences, voices, and priorities are being heard (and whose are being excluded) and seek to center those activists at the grass roots who are leading the struggle for queer liberation and erotic justice on the continent.

Article

Attitudes Toward LGBT People and Their Rights in Europe  

Kath Wilson

Attitudes toward LGBT people have changed in Europe since the 1990s; there is generally much more tolerance and acceptance. Evidence drawn from surveys and research projects including the European Social Survey, European Values Study, and Pew Research Center illustrate the types of attitudes that have changed, and in which European countries change has occurred. A comparison of attitudes and tolerance across Europe indicates that some countries and groups of countries are more accepting of LGBT people. North-western European nations appear high in the tolerance rankings of trend surveys, while more easterly European nations have not always followed this progression. Indeed, in cases such as Russia and Chechnya, “propaganda laws” have denied LGBT people basic human rights. Hostility toward and violence against LGBT people is perpetrated with seeming impunity in these areas. Factors that influence attitudes toward LGBT people and their rights include democracy and economic development, religiosity, global forces, and degrees of contact. There is a clear link between legislation and attitudes; in countries where legislation is in place and, for example, where same-sex marriage is legal, surveys overwhelmingly show a higher acceptance of LGBT people. Legislation is a powerful influence in shaping social attitudes, so it is important to consider the legislation adopted by various European countries. Institutions such as the European Union are effective in providing protections for LGBT citizens as well as leading on areas such as the Common European Asylum System (CEAS). There has been “pushback” in terms of change and one of the more contested areas is same-sex marriage. While the trend since the late 20th century has seemed to be toward introducing same-sex marriage, a number of countries, largely in Eastern Europe, have introduced constitutional bans on same-sex marriage, defining marriage as solely between a man and woman. The position of trans and non-binary people is particularly perilous since there is very little legislative protection in place for them. There has been a positive change in attitudes and legislation across Europe which has enhanced the lived lives of LGBT people; these changes, however, have not been even or uniform across the area.

Article

Civil Disobedience and Conscientious Objection  

William Smith and Kimberley Brownlee

Civil disobedience and conscientious objection are distinct but related social practices that display people’s opposition to specific laws, policies, directives, or schemes. In general, these two practices arise from people’s deeply held commitments. Civil disobedience is more overtly communicative and political than conscientious objection. Civil disobedience is also, almost by definition, a breach of law, which people engage in to push for changes in either governmental or nongovernmental practices. Conscientious objection, by contrast, does not always break the law: sometimes it is a legally protected form of nonconformity. It is also less overtly political than civil disobedience, stemming as it does from people’s desire not to participate in practices they oppose, rather than from their ambition to change those practices. Both practices can be morally justified under specific conditions that, among other things, include doing only limited harm to other people. Moreover, under even more specific conditions, both practices could be said to be protected by moral rights. Civil disobedience and conscientious objection generate pressing normative and political challenges concerning the nature of the rule of law, respect for the rule of law, conditions for deliberative democracy, equality before the law, policing, adjudication, and punishment.

Article

Courts and Social Policy  

Jeb Barnes

How do courts affect social policy? Answering this question is deceptively complex. Part of the challenge stems from the sheer scope of contemporary judicial policymaking, particularly in the United States, where litigation reaches into nearly every nook and cranny of the American welfare state and casts a shadow on policy issues ranging from marriage equality to healthcare reform. Another obstacle is that scholars remain deeply divided on fundamental questions about the nature of judicial decisions and how their policy effects should be studied. These disagreements, in turn, have engendered three very different approaches to studying the role of courts in social policy that often talk past each other. The dominant approach views judicial decisions as prescriptive rules—legal commands from the bench—and asks: To what extent do judicial decisions change policy? This view implies that judicial decisions are “treatments” whose efficacy should be tested by measuring shifts in policy outcomes from the pre- to post-treatment period or across treatment and control groups. An alternative tradition envisages judicial decisions as a potential resource, which can be used by activists as leverage in building movements and pursuing agendas in multiple forums. Here, the core question is not whether court decisions produce abrupt policy shifts, but how activists use these decisions to challenge the status quo, mobilize interests, and generate pressure for policy change. A third approach sees legal precedent as a constitutive framework that shapes and constrains policymaking and its politics over time. The test for whether law matters under this approach centers on the degree to which judicial decisions influence the developmental trajectories of policy and politics, which includes consideration of paths not taken in the policymaking process. That is not to say that the literature is wholly discordant. Despite their significant conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like statues and regulations, is contested and subject to capture by sophisticated interests; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective political demands; judicial precedents, like other policies, generate policy feedback. Identifying similarities between judicial policymaking and its counterparts is a signature achievement in the study of courts and social policy, which has largely dispelled the “myth of rights” and simplistic notions that the law is somehow removed from politics. Yet it arguably has had an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it less interesting as a distinct topic for research. This article suggests the time has come for all of the various research traditions in the field to return to foundational questions about what makes judicial policymaking distinctive, and systematically study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process.

Article

Multiculturalism and Political Philosophy  

Annamari Vitikainen

Multiculturalism has been used both as a descriptive and a normative term, as well as a term referring to particular types of state policies. As a descriptive term, multiculturalism refers to the state of affairs present in contemporary societies: that of cultural diversity. As a normative term, multiculturalism affirms cultural diversity as an acceptable state of affairs, and provides normative grounds for accommodating this diversity. As a policy-oriented term, multiculturalism refers to a variety of state policies that aim to accommodate people’s cultural differences—most notably, different types of culturally differentiated rights. The main focus of the debates on multiculturalism within political philosophy has been on normative multiculturalism, and the broader normative questions relating to the appropriate grounds for responding to people’s cultural differences. The debates on descriptive multiculturalism and on particular multicultural policies, however, feed into the debates on normative multiculturalism. One’s views on the nature of culture, the value of culture, and the appropriate means of demarcating group boundaries have implications on the ways in which one understands the proper objects of cultural accommodation, as well as the extent to which such accommodation should be applied. The different types of multicultural policies—including rights of indigenous groups, immigrants, and national minorities—incorporate slightly different sets of normative considerations that must be independently assessed and that also feed into the more general debates on the normative foundations for cultural accommodation. Equality-based and identity-based arguments for cultural concern provide strong grounds for the state to be concerned about people’s cultural differences and to aim to alleviate culturally induced disadvantages. The case for (or against) culturally differentiated rights as a means for responding to these disadvantages may, however, come from several sources, including approaches to cultural diversity based on equality, autonomy, toleration, and state neutrality. While there is relative (albeit not full) agreement among normative theorists of multiculturalism that differentiated rights may be acceptable, though not always required or even desired, responses to cultural diversity, disagreements about the normative bases, and extents of application, remain.

Article

The Role of Reparations in the Transition from Violence to Peace  

Peter J. Dixon

Reparations are among the most tangible, victim-centric, and personal of processes in the transition from violence to peace, symbolizing the recognition that an individual has been harmed and has rights in the eyes of the state or international community. Reparations are also an inherently political project, transforming official visions of violence, responsibility, and victimization into material and psychological benefit. Despite the power of reparations to shape transitions from violence to peace, they have been too often ignored in practice, leaving most victims of gross violations of human rights and serious violations of international humanitarian law without reparation. Partly as a consequence, research has tended to focus more on “harder” processes, like trials and truth commissions, than on the “stepchild of postconflict justice.” Yet, there have been significant developments in reparations theory and practice that motivate key outstanding questions for researchers. Reparations derive their symbolic power from the law, which is an imperfect tool for responding to the varied forms of violence experienced in conflict and to the diverse, sometimes contradictory, priorities and needs that people hold. In such contexts, there is an inherent tension between expanding reparations programs to be inclusive and adaptable and preserving their fundamental distinction as a justice process. This is a difficult balance to strike, but there are frameworks and questions that can offer useful guidance. In particular, the lenses of economic violence and positive peace are useful for articulating the role of reparations in postconflict transitions, offering conceptual expansion beyond transitional justice’s traditional concern for political violence without delving too far into the customary terrain of development or postconflict reconstruction. Yet, the specific mechanisms through which the inward and outward feelings and attitudes and broader social changes that reparations are expected to produce remain undertheorized in transitional justice scholarship, in large part because of a lack of empirical evidence about how recipients experience them in practice. Does the restoration of civic trust, for example, depend upon recipients of individual reparations telling their neighbors about their payments? Does recognition as a citizen depend upon a beneficiary publicly self-identifying as a victim? Questions like these about the particular variables that drive reparations outcomes represent the next frontier for transitional justice researchers interested in the role of reparations in the transition from violence to peace.

Article

Immigration and Foreign Policy  

Anna Oltman and Jonathan Renshon

Immigration has taken on renewed prominence in both domestic and international politics. Typical approaches to this pressing theoretical and policy problem, however, focus on either domestic politics (e.g., filling labor needs and integrating migrants into society) or international relations (e.g., international law or norms regarding the treatment of migrants). In this sense, work on immigration has coalesced around two ways of seeing this problem, one micro, one macro, and neither one related to foreign policy. This is particularly unfortunate given that a foreign policy approach—grounded in “mid-range theory,” an “actor-specific” approach, and a sensitivity to factors both above and below the state level—has the potential to add a great deal to our understanding of immigration in IR. A review of the literature reveals two approaches to immigration in IR. The first, largely grounded in the methods and assumptions of political economy, focuses on the “pull” or demand factors that incentivize and regulate migration to a receiving country. The second focuses on “push” factors that drive people from their homelands. This latter approach concentrates on displaced populations, human rights norms, and institutions and cooperation among states. Both approaches contribute a great deal, but are, unfortunately, isolated from each other: an outcome that is at least partly attributable to an arbitrary and politically expedient distinction between “refugees” and “ economic migrants” that countries found it in their interests to make in the aftermath of World War II. This discussion of immigration and foreign policy thus begins by surveying the theoretical and empirical landscape and providing a framework with which to understand contributions thus far. The following section will highlight three major themes emerging in an innovative new body of research. Fundamentally, these themes revolve around integration: whether it is the integration of security into immigration studies (typically dominated by an economics-based approach), of identity concerns into the public’s immigration preferences, or a focus on the multiple actors located in between the domestic public and international regimes. Suggestions for future research will conclude our discussion.