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Libertarianism  

Bas Van Der Vossen

Libertarianism is a theory in political philosophy that strongly values individual freedom and is skeptical about the justified scope of government in our lives. Libertarians see individuals as sovereign, as people who have a right to control their bodies and work, who are free to decide how to interact with willing others, and who cannot be forced to do things against their will without very strong justification. For some, the argument in support of this view hinges on the principle of self-ownership. To them, individual rights are morally foundational, the basic building blocks of their theory. Many others, however, take a broader view, arguing that societies flourish when they offer people large degrees of freedom in both personal and economic matters. As a result, libertarianism sees the state as playing at most only a very limited role in matters concerning distributive justice. Libertarians are skeptical about calls to reduce material inequality for its own sake, strongly favor free trade, and defend opening borders for migrants. They see policies that violate these commitments as inevitably involving wrongs against free and equal persons.

Article

Transgender-Specific Politics and Policy in Asia  

Natasha Israt Kabir and Khadiza Tul Qubra Binte Ahsan

Acute discrimination has been witnessed across Asia regardless of individual countries’ specific policies towards transgender people. As individuals, it would be reassuring to believe that Article 1 of the UN Charter, which states that “All human beings are born free and equal in dignity and rights,” would encourage people to ignore gender differences. In different parts of Asia, even where transgender people have been officially recognized, their rights are fragile. Indeed, today activists focus more on women’s rights than on the rights of all sexual minorities, who as a consequence often live in extreme poverty and ill-health. The exclusion of the transgender community in governmental policymaking is another salient reason for their current living conditions. Even though transgender candidates participate in elections in most countries, their representation in parliaments is rare. Furthermore, violence toward the transgender community is such a common scenario that it has become normalized. Victims rarely get support because of legal loopholes and the unwillingness of the law enforcement agencies to help. Transgender and gender diverse people are not only targeted but also discriminated by law through a denial of gender marker change on official documents; the criminalization of the gender and sexual preferences of transgender and gender diverse people; the exploitation of public order, homelessness, and minor offenses; the criminalization of consensual homosexuality and intimacy; and police abuses even in the absence of a specific offense. Regardless of parliamentary legislation and other legal frameworks, policymakers and law enforcement agencies routinely operate outside the law to violate the rights of transgender and sexual minority people. Among the abuses reported by transgender persons are blackmail, extortion, public humiliation, and physical and sexual violence. If policies to socially integrate transgender and gender diverse peoples are not implemented, the state of the transgender community in Asia will not improve.

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

Women, Equality, and Citizenship in Contemporary Africa  

Robtel Neajai Pailey

Though deeply contested, citizenship has come to be defined in gender-inclusive terms both as a status anchored in law, with attendant rights and resources, and as agency manifested in active political participation and representation. Scholars have argued that gender often determines how citizenship rights are distributed at household, community, national, and institutional levels, thereby leaving women with many responsibilities but few resources and little representation. Citizenship laws in different parts of Africa explicitly discriminate based on ethnicity, race, gender and religion, with women bearing the brunt of these inequities. In particular, African women have faced structural, institutional, and cultural barriers to ensuring full citizenship in policy and praxis, with contestations in the post-independence era centering around the fulfillment of citizenship rights embedded in law, practice, and lived experience. While African women’s concerns about their subjective roles as equal citizens were often sidelined during nationalist liberation movements, the post-independence era has presented more meaningful opportunities for women in the continent to demand equality of access to citizenship rights, resources, and representation. In contemporary times, a number of local, national, continental, and transnational developments have shaped the contours of the battle for women’s citizenship equality, including the prominence of domestic women’s movements; national constitutional reviews and revisions processes; electoral quotas; female labor force participation; and feminism as a unifying principle of gender justice. African women have had to overcome constraints imposed on them not only by patriarchy, but also by histories of slavery, colonialism, structural adjustment, land dispossession, militarism, and neoliberalism. They have often been subordinated in the domestic or private sphere, with gendered values and norms then undermining their agency in the public sphere. Although African women have managed to secure some political, socio-economic, and cultural rights, resources, and representation, this has certainly not been the panacea for achieving full equality of citizenship or gender justice.

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

Mobilizing the Invisible: Power and Marginality in the Black LGBTQ Community  

Ravi K. Perry and Aaron D. Camp

Symbolic and structural inequities that seek to maintain White supremacy have sought to render Black LGBTQ Americans invisible in the body politic of powerful institutions that govern society. In the face of centuries-long oppression at the hands of the state, Black LGBTQ Americans have effectively mobilized to establish visibility on the national policymaking agenda. Members of this community have demonstrated a fierce resilience while confronting a violent anti-Black and anti-LGBTQ mainstream agenda narrative in media and politics. This sociopolitical marginalization—from members of their shared demographic, or not, is often framed in partisan or ideological terms in public discourse and in the halls of American political institutions. Secondary marginalization theory and opinion polling frame how personal identity and social experience shape the Black LGBTQ political movement’s expression of what participation in politics in the United States ought to earn them in return. Double-consciousness theory contextualizes the development of Black LGBTQ sociopolitical marginalization in the United States and the community’s responsive mobilization over time—revealing the impact of coalition building and self-identification toward establishing political visibility necessary to improve the lived conditions of the multiply oppressed.