LEGAL THEORY



SELECT ARTICLES & BOOK CHAPTERS

 

Walter Benjamin, Race and the Critique of Rights, Griffith Law Review, 4 April 2019 (online).

 

In the "Critique of Violence," 1921, Walter Benjamin contemplated a situation in which the exercise of a legal right by an individual could be construed as a violent assault upon the state. For Benjamin, it was the exercise of worker rights which potentially threatened the state.  Today the perceived source of the threat to state stems equally from claims for racial justice. This article examines the extent to which Benjamin’s account of the state’s necessarily ambivalent relation to the legal rights which it confers upon individuals can provide a fitting framework within which to examine how, after a period of expansion of individual rights in various economic and social spheres in the latter half of the twentieth century, this century has seen significant retrenchment, with access to legal aid and voluntary legal services being severely restricted in an effort to direct individuals toward non-legal means of dispute resolution.

Available here

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Law, Justice and the Public Inquiry into the Grenfell Tower Fire, in Bulley, E, Edkins, J and El-Enany, N (eds.), After Grenfell: Violence, Resistence and Response, Pluto Press, 2019.

Public Inquiries are chief among the various means by which the state seeks to direct away from the courts individuals who have suffered preventable physical and/or psychological harm, or loss of home and property. This chapter does not reject the idea that public inquiries may provide an effective alternative to a conventional court action. However, it argues that the conditions that will make such alternatives feasible are absent from the Grenfell situation. The chapter explores the decision in R (on the application of) Daniels v May [2018] (the Grenfell Judicial Review decision) in order to show how the dissonance between law and justice is emphasised whenever the question of racial justice is raised. 

 

Available here

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Justice and the Mythology of Modern Law, in Brenna Bhandar and Sara Ramshaw (eds), On Colonial Universality and Other Legal Perspectives: Reflections on Peter Fitzpatrick's The Mythology of Modern Law, Critical Legal Thinking, 2018.

In this short piece I suggest that the relation between law and savagery, which Fitzpatrick uncovers within positivist and natural law traditions, persists within the post-modern scene of normative theories — many of which have engaged an extensive critique of positions of dominance in modernity.

 

Available here

 

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Critique, Crime Fiction and the no right answer thesis, in Tuitt et al (eds), Crime Fiction and the Law, Routledge 2016, 15-27

On the face of it, the “no right answer” thesis is entirely consistent with a critical approach to law. Indeed, one might plausibly argue that it is the one principle toward which those engaged in the law must show fidelity if the potential of law as a critical tool is to remain open. Against this view, this chapter questions whether investment of intellectual effort in the contemplation of legal questions is negatively challenged by adherence to the thesis. If critique is properly thought of as “a kind of thinking that never finds it self at the end” (Lawlor 2014) (as I suggest it is), then it is arguable that thinking may come too abruptly to an end in the setting in which students, scholars and practitioners of law have been induced to contemplate legal questions.

 

Available here

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Fanon, Law and Absolute Violence, in Miguel Mellino (ed.), Fanon Postcoloniale. I Dannati Della Terra Oggi,  Ombre Corte, 2013.

 

This essay focuses on two chapters in Fanon's 1961 monograph, Wretched of the Earth, which examine the question of violence.  It demonstrates that Fanon was very much concerned with the distinction between legal violence and a non-juridical form of violence.  In doing so, it seeks to bring Fanon's work in a direct relation with other leading theoretical accounts of the relation between law and violence - most of which take little or no account of the violence of colonialism. 

 

Available here

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Literature, invention and law in South Africa’s constitutional transformation in Motha and Van Marle, Genres of Critique: Law, Aesthetics and Liminality 2013 SUN PRESS and STIAS

The paper is in two parts. Part one provides a theoretical commentary on the relation between law and aesthetic forms, drawing on the work of Frantz Fanon (1961), among others. Part two brings the theoretical analysis of the first part to bear upon Antjie Krog’s novel, Begging to be black (2009). It argues that Krog’s attempt in the novel to re-imagine her world mimics the violence of law in its many instances of colonial appropriation.

 

Available here

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(with David Farrier) Beyond Biopolitics: Agamben, Asylum, and Postcolonial Critique in Graham Huggan (ed) The Oxford Handbook of Postcolonial Studies. Oxford University Press, 2013.

Available here

 

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Legal Practice and Modes of Dying: Bruno Latour, Technology

and the Critical Legal Instance, vol 16 (1) (2005), Law and Critique, 113-129

Often, great passions prompt the act of going to the law. As they are played out through the legal process and through law’s technologies, these passions are transformed into something more muted, more quiescent. Emotions are made passive first in the decision to subject them to the law. They become more passive still as the legal system, its institutions and technologies flatten and imperil them. Finally, what were great passions, emotions and desires become mere memory and precedent. It is incumbent on all connected with the practice of law to be present and active in these stages of transformation – for they mimic growth, age and the passage toward the end.

 

Available here

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(2006), Individual violence and the law, in Austin Sarat (ed.) Studies in Law, Politics and Society (Studies in Law, Politics and Society, Volume 39) Emerald Group Publishing Limited, pp.3 – 14

This paper argues that there is an urgent need to reappraise the place of individual force within philosophies of the relation between law and violence. Almost without exception, accounts of this relation declare that individual violence undermines the authority of law itself. The following seeks to interrogate this contention, and, in doing so, to begin to construct a more nuanced way of conceiving how the law preserves it’s authority.

 

Available here

BOOK REVIEWS & CASE NOTES

 

The Changing Parameters of Legal Practice: A Review of Andreas Philippopoulos-Mihalopoulos, Routledge Handbook of Law and Theory, Routledge, 2018.  535 pp.  £175.00 (HB).  ISBN: 978-1-138-95646-9.

This review explores how theoretical works published by legal academics are increasingly impacting on how law is practised in courts and in other contexts in which legal action takes place.

 

 

Available here

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Modern Colonial Monuments: A Review of  Gurminder K. Bhambra, Dalia Gebrial, Kerem Nişancıoğli, Decolonising the University, Pluto Press, 2018.  535 pp.  £175.00 (HB).  ISBN: 978-1-138-95646-9.

Universities are said to be attempting to confront their colonial legacies.  However, as this review illustrates, their present expansion is reliant upon colonial modes of appropriation - made manifest in the attainment gap between black and minority ethnic university students and their white counterparts.

Available here

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How to Study Social Welfare Law: A Review of Robbie Shilliam, Race and the Undeserving Poor: From Abolition to Brexit, Agenda Publishing, 2018.  209 pp. £18.99 (PB). ISBN: 978-1-78821-038-6.

The study of social welfare law, although not compulsory, is gaining importance in undergraduate/postgraduate legal studies. This review explores how the subject would be enhanced through study of the intersections of race and class discrimination in the design of the UK’s social welfare laws.

Available here

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Expert Evidence.  A Review of Deborah Gebriel and Shirley Anne Tate(eds), Inside the Ivory Tower: Narratives of Women of Colour Thriving and Surviving in British Academia, IOE Press, 2017.  152 pp.  £24.99 (PB).  ISBN: 978-1-85856-849-2.

This review contemplates the legal remedies that 10 black women academics might have in relation to the experiences of racism within the university which they narrate.

Available here

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© 2018 Patricia Tuitt

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