This article reviews pertinent literature and presents findings from recent research to illustrate how CAFCASS (Children and Family Court Advisory and Support Service) private law practitioners understand, experience and manage the tension between empowerment and protection in welfare report enquiries. The traditional approach in the United Kingdom has been for children to be protected, especially when their divorced or separated parents are in conflict, but the balance is changing, as calls for the active participation of children in decisions (...) that affect them continue to grow louder. (shrink)

In this paper, changes in the status and nature of one case from the Family Court of England and Wales will be discussed. The changes cover two aspects of the case. Firstly, the shift from a civil action – a standard family court case concerning the break-up of a relationship and its effect on the children born from the relationship – to a quasi-criminal case in which contempt of court plays the central role; this will (...) be discussed from a Greimasian perspective. Secondly, the case is accompanied by types of silence – from the textual silence of private proceedings in the Family Court to the conversational silence in the form of one of the protagonists’ right of silence. (shrink)

William Irwin gives readers a deeply moving and insightful work into human relationships, our connection to others, the nature of reality, the pursuit of flourishing, and human nature in general. Little Siddhartha centers on three generations of family and explores how they respond to the pressures of life, their place in the world, and the fractured relationships that result. Starting with the younger Siddhartha’s mantra of “Eat, drink, and be merry,” and ending with a concerted chant of “Om,” Irwin (...) weaves a tale that explores the spiritual recesses of human existence, calling on readers to understand, forgive, and most importantly, to listen. (shrink)

This article examines Re Imogen (No 6) (2020) 61 Fam LR 344, a decision of the Family Court of Australia, which held that an application to the Family Court is mandatory if a parent or a medical practitioner of a child or adolescent diagnosed with gender dysphoria disputes the diagnosis, the capacity to consent, or the proposed treatment. First, we explain the regulatory framework for the medical treatment of gender dysphoria in children and adolescents, including the (...) development of the welfare jurisdiction under Section 67ZC of the Family Law Act 1975 (Cth). We then provide an overview of the Re Imogen decision, and discuss the balancing exercise involved in determining a child’s best interests in the medical treatment context. We challenge the Family Court’s conclusion that, in relation to a dispute about diagnosis or treatment, a finding that the child or adolescent is Gillick competent to consent to treatment is not determinative, and the Family Court must determine the dispute. We argue that this conclusion represents an unjustified incursion into the right of Gillick competent transgender children and adolescents to make decisions about their own bodies and identities, and that the protective role of parents and the Family Court cannot justify interfering with their bodily autonomy in this context. Finally, we propose an alternative regulatory framework that removes the Family Court from the medical treatment process for gender dysphoria in circumstances of dispute between a parent and their Gillick competent child. (shrink)

Kobade teaches that we must recognize all individuals as links in a familial/community chain from ancestors, to the present, and to future generations. With the recognition of kobade, individuals are then called to develop kwe—knowledge of one’s self that is theoretically anchored to and generated through one’s particular ancestral and lived experience. Kwe is a deep personal knowledge that is produced by combining the past with the present through everyday actions. It creates an attitude and process of engagement with the (...) world that responds to oppression by refusing domination of all kinds and generates new ways of engaging and living one’s grounded normativity. Grounded normativity is what stabilizes and motivates a life of meaning that participates in an embodied radical resurgence. (shrink)

Withdrawal of artificially delivered nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) requires judicial approval in England and Wales, even when families and healthcare professionals agree that withdrawal is in the patient9s best interests. Part of the rationale underpinning the original recommendation for such court approval was the reassurance of patients’ families, but there has been no research as to whether or not family members are reassured by the requirement for court proceedings or (...) how they experience the process. The research reported here draws on in-depth narrative interviews with 10 family members (from five different families) of PVS patients who have been the subject of court proceedings for ANH-withdrawal. We analyse the empirical evidence to understand how family members perceive and experience the process of applying to the courts for ANH-withdrawal and consider the ethical and practice implications of our findings. Our analysis of family experience supports arguments grounded in economic and legal analysis that court approval should no longer be required. We conclude with some suggestions for how we might develop other more efficient, just and humane mechanisms for reviewing best interests decisions about ANH-withdrawal from these patients. (shrink)

This article explores the links between our roles as academics, advocates, and activists, focusing on our research on treatment decisions for patients in vegetative and minimally conscious states. We describe how our work evolved from personal experience through traditional social science research to public engagement activities and then to advocacy and activism. We reflect on the challenges we faced in navigating the relationship between our research, advocacy, and activism, and the implications of these challenges for our research ethics and methodology—giving (...) practical examples of how we worked with research participants, wrote up case studies and developed interventions into legal debates. We also address the implications of the impact agenda—imposed by the British Research Excellence Framework— for our actions as scholar‐activists. Finally, we ask how practicing at the borders of academia, advocacy, and activism can inform research—helping to contextualize, sensitize, and engage theory with practice, leading to a more robust analysis of data and its implications, and helping to ensure a dialogue between research, theory, lived experience, front‐line practice, law, and public policy. (shrink)

Family Drug and Alcohol Courts (FDAC) were introduced to England in 2008 following their development in the USA. Pilots launched across the country adopted a family-based strategy with the aim to improve outcomes for children that live with parents who misuse substances or alcohol. The numbers of children entering the care system has increased with ‘subsequent new borns’ being a particular concern frequently becoming ‘looked after’ by the state at birth. This article will focus upon an initial phase (...) of a study that tracked the establishment of an FDAC pilot. It reveals how the FDAC team collaborated with Judges and a diversity of professionals and parents to create conditions through which ground-breaking practice was forged. The environment created is unique as it is one fully set within the context of each family’s lived experience. Through this approach parents have become full participants in court proceedings as opposed to purely subject to them. As a result, significant numbers of children have remained with or been returned to their families. (shrink)

In two decisions delivered inFebruary and March 2001, the German FederalConstitutional Court voided the maritalagreements struck between a man and a pregnantwoman on the grounds that they were the productof an inequality of bargaining power betweenthe parties. These findings, involving anapplication of the fundamental rightsprovisions of the German Basic Law to privateagreements, demonstrate the creeping competenceof the F.C.C. into the sphere of contractualrelations and an ongoing questioning ofthe traditional public/private law divide. Exploring some of the implications of applyingpublic values (...) and constitutional reviewstandards to private agreements, this notecontextualises the decisions within the debateupon competing (and ultimately colliding)social systems of the family and the market. (shrink)

The idea that physical features and character traits are inherited from ancestors is central to the self-identification and representation of pre-modern elites. For the 12th-century Byzantine aristocracy, the idea of family and ancestry was of major importance. Members of the military elite frequently had themselves depicted as the latest scions of a lineage of brave warriors. The ruling Komnenoi and Angeloi tried to establish dynastic claims to the throne by presenting their families as being more fit to rule than (...) any other. To support these claims, panegyrists turned to nature in search of legitimizing comparanda. The idea that animal species reproduce unchanged and pass on their specific traits from one generation to the next, provided a suitable model. Comparisons of emperors or aristocrats and their sons with lion and lion cub or eagle and eaglet were popular images in court poetry. Through a detailed examination of this imagery, the paper exemplifies how writers and orators made use of theories from ancient/medieval natural science and created legitimizing models for socio-political needs. (shrink)

In Re G, the Court of Appeal awarded a joint residence order to the appellant, who was the lesbian ex-partner of the child’s full biological mother. The award also indirectly vested the appellant, a social parent, with parental responsibility and extended a body of case law to same-sex couples, which had until now only been applied to heterosexual couples. The initial purpose of this note is to outline the legal issues of the case in the context of the framework (...) of parental responsibility set out in the Children Act 1989, putting forward a test of ‘parental fitness’ (which focuses on active ‘care’ as its central consideration) for social parents who must appeal to the court’s discretion to obtain parental responsibility. Secondly, the note offers at once a positive reading of Re G while highlighting a number of reservations centring upon continued legal preference for the ‘sexual family’. It is argued that while the legal recognition of ‘family diversity’ and parenthood remains modelled on this ‘sexual family’, the relaxation of family ‘boundaries’ (despite legal victories such as Re G) will remain limited. (shrink)

The reality of current clinical practice in the UK is that where a patient’s family refuses to agree to testing for brain stem death (BD), such cases will ultimately end up in court. This situation is true of both adults and children and reinforced by recent legal cases. While recourse to the courts might be regrettable in such tragic cases, if public trust in the medical diagnosis of BD is to be maintained all aspects of the process must (...) be conducted in a way that is transparent and open to scrutiny. This is not an ‘ineffective expenditure’ of resources, but an essential element of a human rights-compliant legal system. (shrink)

The United States District Court of Kansas, in Gudenkauf v. Stauffer, Znc., granted the defendants motion for summary judgment for the plaintiff's claims of pregnancy-related discrimination under the Americans with Disabilities Act and the Family and Medical Leave Act of 1993, but the court denied a similar motion for the plaintiff's claim under the Pregnancy Discrimination Act. The court found summary judgment to be appropriate for the ADA claim based on its finding that the plaintiff's pregnancy (...) did not constitute an impairment as required by the statute; as for the FMLA claim, it determined that the defendants failure to grant the plaintiff's leave request did not violate the statute. However, the court determined that summary judgment was inappropriate for the PDA claim because of material questions of fact about whether the defendant had acted with discriminatory intent.In considering the motions for summary judgment, the court accepted the following facts as incontrovertible. Plaintiff Michaela Gudenkauf worked for the defendant Stauffer, Inc. (shrink)

The article explores court forms as an interactive genre essential for legal-lay communication in civil and family proceedings: court forms elicit key information from predominantly lay users for the purposes of court administration and the judiciary. The information presented in court forms defines the agenda and communicative focus of the subsequent hearings and settlement negotiations, and in some instances even the path the proceedings would take. It is thus important to consider court forms in (...) terms of their comprehensibility as well as functionality for eliciting legally coherent narratives and facilitating efficient engagement of lay participants with the proceedings. The case study presented in the article draws on the combination of corpus linguistics and discourse analysis to explore two versions of the court form most frequently used by self-represented parties in England and Wales, ‘Form C100: Apply for a court order to make arrangements for a child or resolve a dispute about their upbringing’. The comparison of the paper form and its redesigned online version identifies the improvements made as part of the digitisation process but also indicates communicative challenges which can prevent the lay person from presenting the relevant information. The discussion provides an opportunity to reflect on the role of language in online courts. (shrink)

Many mothers with intellectual disabilities lose their parental rights due to child welfare (CW) concerns. Despite the growing interdisciplinary scholarship on parenting with intellectual disabilities, there is scant research that has explored the discursive practices embedded within CW or family courts involving mothers with intellectual disabilities. The aim of this study is to explore portrayals of mothering with intellectual disability in CW court reports filed in Québec, Canada. A three-level critical discourse analysis was performed, focusing on 10 reports (...) that were retrieved from a publicly available legal database, and their larger discursive societal context. Analysis highlighted unequal power relations as discursive practice underpinned by the following discursive patterns: (1) The ideal caregiver vs the unfit mother (2) Devalued voices of mothers with intellectual disability (3) Professionals as holding authoritative knowledge and (4) Decision-making based on the best interest of the child. Revealing the hidden ideological assumptions embedded in discourse can help to challenge and confront injustice faced by mothers with intellectual disability within the CW system. (shrink)

This article engages the views of PRC Confucian scholars who responded to the United States Supreme Court Justice Anthony Kennedy's citing of Confucius in his majority opinion on same-sex marriage in 2015. It questions their separation of tolerance for homosexuality from legalization of same-sex marriage and argue that tolerance is not enough. The arguments in the mainland Confucian discourse about same-sex marriage highlights the historical and persistent entanglement of Confucianism with patriarchy. Instead of reviving traditional patriarchal society, further entrenching (...) and increasing gender inequality, contemporary Confucianism could shape its own unique modern society that aspires to (and hopefully one day achieving) gender equality together with sexual inclusivity by deconstructing the patriarchal Confucian family and reconstructing a different Confucian family ideal. Accepting same-sex marriage would lend weight to the latter, and there are Confucian reasons for legalizing same-sex marriage and recognizing its ethical value. (shrink)

The “family rule” paper by Dr Foreman proposes a way of resolving the present uncertainty about medical law on children's consent and refusal. This commentary reviews how doctors' decisions are already well protected by English law and respected by the courts. The “family rule” appears to be likely only to complicate the already diffuse law on parental consent, and to weaken further the competent minor's position in cases of uncertainty and disagreement. It leaves the difficult questions about defining (...) and assessing children's competence unanswered. This commentary suggests that these questions would be better resolved through professionally determined standards of good practice that respect children and parents, rather than through rules or laws. (shrink)

How should families be constructed? Does it matter if we choose to ignore ‘blood ties’ and raise children without their genetic parents? The debate over a recent court ruling allowing single and lesbian women access to assisted reproductive technologies (ART’s) illustrates two possible answers to this question. Many of those opposed to the ruling argue that the traditional biological family is the natural family unit and the ideal family form, which should be preserved. Amongst those in (...) favour it is argued that families are not defined by nature but culturally constructed, that the traditional biological family is just one possible family form and that the way families are arranged is a matter of personal preference. This paper argues that questions about the importance of preserving the biological family rest largely on the value we attribute to genetic relatedness and not on whether the family is a natural or cultural construct. I argue against the claim that genetic relatedness and biological families are so important to children’s welfare that lesbian and single women should be denied access to ARTs. (shrink)

This is the first comprehensive analysis of the royal and princely courts of Europe as important places of Enlightenment. The households of European rulers remained central to politics and culture throughout the eighteenth century, and few writers, artists, musicians, or scholars could succeed without establishing connections to ruling houses, noble families, or powerful courtiers. Covering case studies from Spain and France to Russia, and from Scandinavia and Britain to the Holy Roman Empire, the contributions of this volume examine how Enlightenment (...) figures were integrated into the princely courts of the Ancien Régime, and what kinds of relationships they had with courtiers. Dangers and opportunities presented by proximity to court are discussed as well as the question of what rulers and courtiers gained from their interactions with Enlightenment men and women of letters. The book focusses on four areas: firstly, the impact of courtly patronage on Enlightenment discourses and the work as well as careers of Enlightenment writers; secondly, the court as an audience to be catered for by Enlightenment writers; thirdly, the function of Enlightenment narratives and discourses for the image-making of rulers and courtiers; and fourthly, the role the interaction of courtiers and Enlightenment writers played for the formulation of reform policies. (shrink)

Recognition of the status of family in the Constitution of the Republic of Lithuania mandates the state authorities to care and provide for the family, to ensure the family members’ constitutional rights, and to ensure respect for family life. Such duties fall on both, the legislative and executive authorities. However, the enforcement of constitutional imperatives is not straightforward. One reason for this is that the Constitution does not contain any legal definition of ‘family’ or ‘ (...) class='Hi'>family members’. Nor does the jurisprudence of the Constitutional Court of the Republic of Lithuania reveal the content of these notions. This, in turn, allows for various interpretations as to the scope of duties of state authorities and state attitude towards the family in general. In this context, the article aims to present approaches to the legal concept of family in Lithuanian legal doctrine, positive law and court practice. First, the article analyses the constitutional background of the concept of family and presents an overview of the ongoing political debate concerning this concept. Second, we analyse Lithuanian legal doctrine, scanty as it may be on this issue. Third, we examine the legislative specifics and the case law developed by the country’s highest judicial bodies with regard to the legal definition of ‘family’ and ‘family members’ in order to assess their impact on the state family policy in general. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Family in Greek HistoryCheryl Anne CoxCynthia B. Patterson. The Family in Greek History. Cambridge: Harvard University Press, 1998. 286 pp. 6 figs. Cloth, $35.The purpose of Cynthia Patterson's book is to view family structures and family interests and ideals in the historical development of the Greek polis. In her study she takes us through nineteenth-century scholarship, the worlds of Homer and Hesiod, and (...) the societies of Sparta, Gortyn, and Athens as well.In chapter 1, "The Nineteenth-Century Paradigm of Greek Family History," she explores how Bachofen, Fustel de Coulanges, Henry Maine, Louis Morgan, and Friedrich Engels theorized that matriarchy gave way to patriarchy, patrilineality, and agnation. In this context monogamy was the instrument of the patriarchal state, which subjugated women and forced them into the private sphere of the household. This paradigm saw its way into the studies of Grote, whose political history overlooked the contributions of women in Greece; and into those of Mahaffy, who emphasized the social inferiority of women. It is a paradigm that has also influenced, in the twentieth century, the seminal studies on the Greek family by Lacey and Pomeroy. Needless to say, Patterson attempts to dispel this paradigm.In chapter 2, "The Family in Homer and Hesiod," she emphasizes that there is no evidence of patrilineal clans in Homeric society. Public interest, rather, centered on marriage and the oikos, the individual household. In Hesiod the corporate clan was not heir to a man's possessions, and there is little attention given to lineage and ancestors.In chapter 3, "Early Greek Law and the Family," Patterson looks at early law in Sparta, Gortyn, and Athens. For Sparta, she concludes that Spartan marriages [End Page 153] were the result of traditional household strategy, that is, property devolving to legitimate children. For Gortyn, the household was the center of social and economic order. There is no evidence of evolution from a clan-based society to one of private property. For pre-Solonian Athens, again there is no evidence of clans, while the extended kin group of Athens, the anchisteia, was nonagnatic. Solon restricted the bastard, or nothos, from the household, a move which brought the oikos into clearer focus. Patterson ends her discussion by stating that the public interest in securing a husband for an heiress was articulated through the anchisteia.In chapter 4, "Marriage and Adultery in Democratic Athens," she turns her attention to how the polis was interested in the effects of adultery, or moicheia, on the household. She insists that although there was no formal definition of marriage, and although there were no certificates or registers, marriage was not vague because it was recognized through communally witnessed rituals. If marriage can be seen to have been a social process, we may dispel the widespread notion that it was vague. (On the other hand, I would counter, if we view marriage as social process, then during that process witnesses die or are called liars; marriage can come under attack.) Adultery received the public interest, she continues, because it was a violation of the women of the household--here clearly supporting the traditional definition of moicheia as pertaining to a man's kinswomen, not just his wife. This interconnection between household and polis is reflected by Plato's Laws, in which the state tries to reconcile its interest in the household with its concern for unruly passions.With chapter 5, "Adultery Onstage and in Court," Patterson turns her attention to certain tragedies, comedies, and orations. By focusing on the Oresteia she concludes that Clytemnestra's adultery was a crime against the household. In Sophocles' Electra, the playwright is pessimistic as to whether the killing of Aegisthus can restore the household, while Euripides, in his Electra, points out how adultery can contaminate the next generation. In his comedies Aristophanes feels that punishment against adultery is justified. In the orations the moichos, such as Alcibiades, Agoratus, or Timarchus, is viewed as having sinned against the polis. With Aristotle, however, we find that the philosopher has less interest in the public consequences of adultery.Aristotle's separation of household from politics is taken up again in chapter 6, "Public and... (shrink)

This article reflects on the research required in biographical studies. The biographical focus is on the role of three generations of the Schreiner family: W.P. Schreiner (one-time Prime Minister of the Cape Colony), Justice O.D. Schreiner (judge of the Appellate Division of the Supreme Court) and Professor G.D.L. Schreiner (scientist, academic, liberal and early conceptualiser of alternative models to apartheid). All three were involved in developing, defending and sustaining liberal policies and values in South Africa from the late (...) 19th century until the advent of democracy in 1994. The clarifications and contradictions within and between oral and written sources are examined, and individual cases are discussed in which they are highlighted. The research sources include family papers, official archives, publications and, crucially, oral testimony. The oral testimony includes formal and informal interviews. This study is a contribution to the history of a family, a university and a set of values. It covers a long period in South African history during which colonialism tightened into apartheid, resistance developed and the eventual vision of a democratic South Africa came to fruition. Contribution: The primary scientific contribution is the exploration of liberal policies and values in South African political and academic history through the prism of biography. Methodologically, the article discusses possible shortcomings with oral testimony when relied on as a sole source and examines how oral evidence can be utilised in conjunction with research based on archival and published sources to develop a fuller and more nuanced picture in biographical research. (shrink)

This article examines a recent judgment by the European Court of Human Rights that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the (...) Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe. (shrink)

Starting with the analysis of the diary kept by Constantijn Huygens Jr in the second half of the 17th century, this book sketches a panoramic view of life among Dutch regents and at the court of William and Mary, including an eyewitness account of the Glorious Revolution, and highlighting themes such as scientific progress, book and art collecting.

Background. South African surrogacy law includes a provision, known as the genetic link requirement, that commissioning parents must use their own gametes for the conception of a surrogate child. As a result, infertile persons who cannot contribute gametes for the conception of a child are prohibited from accessing surrogacy as a way to establish families. The genetic link requirement was previously the subject of a constitutional challenge, but the challenge was rejected by a divided Constitutional Court bench with a (...) seven-to-four majority. The genetic link requirement is again being challenged in a new lawsuit.Objective. In light of the history of the issue, this article investigates the viability of relying on infertile persons’ right to family life in the new lawsuit. Method. The investigation takes the form of a human rights analysis.Results. The right to family life was not considered in the previous case. As such, the right to family life constitutes a new legal issue that falls outside the scope of the precedent set by the Constitutional Court, and can therefore be relied upon. The genetic link requirement is a clear violation of infertile persons’ right to family life, which includes the right to establish a family. Potential justifications for such violation are considered, but found wanting. Accordingly, the genetic link requirement is unconstitutional and should be struck out.Conclusion. The outcome of the previous lawsuit was an injustice towards infertile persons. The new lawsuit presents an opportunity for this injustice to be rectified by vindicating infertile persons’ right to family life. (shrink)

This paper contributes to international feminist debates on shared parenting and family violence via reforms to Canada’s Divorce Act, in force since 2021. Looking backwards, it reviews parliamentary debates and early judicial discussions. The documentary review reads the reforms as an unstable compromise between calls from feminist voices and experts on family violence and from groups representing fathers. Family violence is now defined broadly and declared relevant to children’s welfare. But language in the statute may undermine its (...) seriousness. Exposing the tensions underlying these reforms is useful for Canadian participants in family justice and for scholars, practitioners, and policymakers elsewhere, exemplifying the promise and perils of reform in this area. Looking ahead, the paper offers recommendations to higher courts. Appellate judges should read rules on contact with both parents and parental cooperation in the light of the new recognition of family violence, taking the latter as an overarching objective of the statute. (shrink)

In Canada, much media attention has recently been focused on the formation of arbitration tribunals that would use Islamic law or Sharia to settle civil matters in Ontario. In fact, the idea of private parties voluntarily agreeing to arbitration using religious principles or a foreign legal system is not new. Ontario's Arbitration Act has allowed parties to resolve disputes outside the traditional court system for some time. This issue has been complicated by the fact that Canada has a commitment (...) to upholding both a policy of multiculturalism and an international obligation towards women's rights. Although these values need not necessarily conflict, in this context, they have carried a tension that must be reconciled. This paper will examine the legal implications of faith-based arbitration tribunals in family law, with a particular emphasis on the impact that Sharia could have on Muslim women in Ontario. (shrink)

In 2011 the European Court of Human Rights delivered 10 judgments in cases against the Republic of Lithuania. In 9 judgments the Court found at least one violation of rights and freedoms guaranteed by the European Convention on Human Rights. Article 6 which provides the right to a fair trial, remains dominant in the applications against Lithuania, since in 7 out of 10 delivered judgments the Court declared violations of Article 6 (mostly paragraph 1 concerning the length (...) of proceedings). In 2011 the Court as well declared violations of prohibition of torture, right to respect for private and family life and the right to free elections. (shrink)

In Child Abuse, Family Rights, and the Child Protective System: A Critical Analysis from Law, Ethics, and Catholic Social Teaching, Stephen M. Krason gathers essays by leading scholars and practitioners to comment through the prism of Catholic social thought, on the plight afflicting American families and the role of the child protective system. Here readers will find critical essays on the deleterious effect of the 1974 passage of the Child Abuse Prevention and Treatment Act; assessments of current American policies (...) on child abuse and neglect and the role of the CPS within the context of prevailing international human rights principles and Catholic social teaching; a survey of the enforcement of CPS policies from a legal and constitutional perspective; research data disputing the CPS principle that all parents are potential abusers and illustrating the greater prevalence of abuse and neglect in broken, “blended,” and “untraditional” families; and arguments for poverty and unemployment as the prime culprits in the mistreatment of children. Also included are the amicus curiae briefs that the Society of Catholic Social Scientists submitted in two U.S. Supreme Court cases on parental rights, the CPS, and state control over the family. (shrink)

In the Coman case, the European Court of Justice was asked whether the term “spouse”—for the purposes of EU law—includes the same-sex spouse of an EU citizen who has moved between EU Member States. The ECJ answered this question affirmatively, holding that a refusal to recognise a same-sex marriage and the resultant refusal to grant family reunification rights to a Union citizen who moves to another Member State, would constitute an unjustified restriction on the right to free movement (...) that Union citizens enjoy under EU law. This case comment analyses the judgment, arguing that the Court’s pronouncement is a very welcome first step towards marriage equality at a cross-border level in the EU. At the same time, following the delivery of this ruling, a lot of questions have arisen and gaps in the protection of same-sex couples persist, and these are also analysed in this piece. (shrink)

Forty years after the beginning of the Khmer Rouge regime, the recent Trial Chamber judgment in case 002/01 before Extraordinary Chambers in the Courts of Cambodia has provided legal recognition of the devastating violence of the forced population movements. However, despite the undoubted significance of the judgment, it represents a missed opportunity to more fully reflect issues of gender. The article argues that in order to capture the plurality of gendered experiences it is necessary to foreground a social understanding of (...) harm. Drawing on civil party oral testimony, the article begins to surface gendered experiences of the social harms of familial separation and starvation of family members, harms that have often remained silenced in international criminal law. In doing so it seeks to contribute to emerging feminist discourse on broader gendered harms and illustrates the need for further scrutiny of the approach of the ECCC. (shrink)

The jurists of classical Islamic Law defined the interior forum as a limit to the religious validity of the sentences of Muslim judges , because these have neither access to God's knowledge nor to the individual believer’s conscience and motivations. They can base their decisions solely on exterior appearances and can, therefore, neither be sure that their judgments correspond to the facts nor to the intentions and memories of the individuals concerned. This holds especially true for questions of belief and (...) unbelief. From the eighth to the nineteenth century, the norms of Islamic law were the result of learned debates among independent jurists and their schools of law. In the nineteenth and twentieth centuries, it was integrated into the codes enacted by the competent institutions of the national states and lost its normative authority in most spheres of the modern state law. It remained dominant only in personal statute law, i.e. the rules concerning marriage and divorce, family and succession. From the early seventies of the twentieth century, opposition against the neglect of religious norms in modern state law was centered on the demand for the “codification of Islamic law” . Its leaders were jurists trained in modern law faculties, who wanted to insert the norms of classical Islamic Law into the codes of the national state with which they are familiar. The ethical debates of classical Islamic law, obviously, did not lend themselves easily to such an approach.The jurists movement for the codification of Islamic law gained in momentum during the eighties when, in a number of states, it succeeded in assuring for the classical apostasy rules a place in the modern criminal codes. In other states, such as Egypt, the highest courts opened the way for apostasy trials. The analysis of one apostasy judgment of the highest Egyptian court shows that the court understands belief and apostasy as objective facts that can be separated from the person who professes or denies them. It is on this question that my lecture focuses. The court effectively claims the role of the highest instance in questions of belief and unbelief. Belief and apostasy thus become depersonalized objective facts without any relation to the intentions of the individuals concerned. The court’s sentence does not refer to the believer’s own interior forum : the concept seems to be irrelevant to the judges. Their definition of apostasy serves to control the ideas that can legitimately be discussed in the public sphere. It denies bold reinterpretations of Islam, but also a number of political persuasions and theories, the right of access to the public space and assigns them the private sphere as their legitimate abode. A new concept of private and public is thus developed in the detailed reasoning by which the court justifies its judgment.There is, to my understanding, nothing in the religion of Islam that renders such a stance necessary. Other courts, in Egypt, develop other ideas of the principles of Islamic normativity and in other Arab states go so far as to develop a concept of privacy that would forbid the debates discussed in this lecture. It seems important to underline that the use of classical elements in the court’s judgment does not conceal the fact that the ethical criteria of classical Muslim law find little place in this jurisdiction that represents a special version of modern legal positivism. (shrink)

Anthony van Dyck’s period of service to the Stuart court stretches from 1632, when he was appointed “principalle Paynter in ordinary to their Majesties” and knighted, to his death at the end of 1641. After an earlier visit of a few months, beginning in December 160, van Dyck had gone to Italy to improve himself; there he had defected from the service of James I. On his return to England this was forgiven, and in the early years he was (...) mainly employed in making portraits of the royal family and household. Later he was again absent from England, spending an entire year beginning in July 1634 back in Antwerp. During the last six years van Dyck spent in England, his clientele widened further; it is chiefly the portraits of this latter period that I will consider here.These portraits have been approached and evaluated in two basic ways. First of all, they have been taken to demonstrate the adaptation of van Dyck’s preexisting skills, especially his command of the “grand style,” to the requirements of a court and aristocracy which prized grace and elegance as hallmarks of breeding and quality, and which at the same time welcomed the trappings of grandeur and the subtleties of variation, in costume, post, and gesture, that the artist could build into his presentation for their predilection.1 Second, where critical considerations have come up, these paintings have been evaluated in terms of whether the adoption of mannered and decorative traits now betokens a decline from the artist’s previous work, or whether it represents rather a different kind of achievement which gave rise, at its best, to equally outstanding successes in conveying refined and subtly enhanced distinction.2But both these approaches agree in finding no intellectual content in the works in question, either of van Dyck’s own devising or based on interests and concerns in which his subjects partook. This absence of implication to the portraits is seem as fitting with thea rtist’s tendency to make creative decisions on an ad hoc basis, as evidenced by his preference for rapidly made drawings from the life over the use of oil sketches and by the pentimenti that his finished works reveal.3 It is also seen as fitting with the whole pattern—cultural as well as social and economic—of his relationship to the Stuart aristocrazy, for which these images were fashioned. 1. See esp. Ellis Water house, Painting in Britain, 1530-1790 , pp. 49-50 ; and cf. more recently Christopher Brown, Van Dyck .2. See, for example, Erik Larsen, intro. to L’opera completa di Van Dyck 1626-1641 , p. 8 and Oliver Millar, intro. to exhibition catalog Van Dyck in England , p. 27 and esp. p. 31 .3. See Millar, Van Dyck in England, p. 31, citing the miniaturist Richard Gibson on the “Sketches made from the life,” mainly lost, and cat. no. 12, on the pentimenti found in the 1633 Charles I on Horseback. Mark Roskill is professor of the history of modern art at the University of Massachusetts at Amherst. His most recent book is The Interpretation of Cubism . Previous contributions to Critical Inquiry include “On the Recognition and Identification of Objects in Paintings” and “A Reply to John Reichert and Stanley Fish”. (shrink)

Thābit b. Qurra, a Sabian of Ḥarrān, and his descendants remained in their ancestral religion for six generations. Why did they persist despite pressure to convert? This article argues that religious self-identification as a Sabian could be a distinct advantage in Baghdad’s elite circles. It focuses on Thābit’s great-grandson Abū Isḥāq Ibrāhīm b. Hilāl al-Ṣābī and his poetry as collected by al-Thaʿālibī. Two members of the family who did convert are also considered by way of contrast.

Despite major advances in gender equality, patrilineal naming—children being granted their father’s surname—persists as a largely unquestioned norm in those Western countries with predominantly Anglo traditions, even in families where mothers retain their birth names. In Australia, when parents cannot agree on the child’s surname, the issue will go to a court or tribunal, to be decided by a judicial decision-maker. Apart from Jonathan Herring’s work in the UK, such cases have been little examined by scholars. This paper explores (...) the question of whether child surnames chosen by Australian courts—a supposedly neutral and objective third party—uphold patriarchal logic or provide more equitable outcomes. Using a feminist critical discourse framework, we examine five recent court judgments about child surname disputes, and six news articles about these types of cases. While these cases are not a representative sample, we find that, despite the existence of specific legal principles relating to children’s surnames, decision-makers’ judgments were inconsistent and subjective. Furthermore, mothers’ names tended to be granted to children when fathers were deemed to be ‘bad dads.’. (shrink)

This article explores how the Portuguese legal system’s efforts to determine paternity of children born outside legal marriage, automatically initiated by the Registry Office when a birth registration does not indicate the father, reveal cultural models which reinforce the naturalisation of the differences between mothers and fathers, with significant effects on the social construction of parental roles and on expectations of family organisation and female sexual behaviour. The article relies on ethnographic data drawn from direct observation of court (...) proceedings for the determination of paternity, as well as interviews with judges and prosecuting counsels all over the country. It is argued that judicial practices in the specific context of courtroom investigations of paternity reinforce gender inequalities in two interrelated ways. On the one hand, they are strengthened in the discursive practices performed during the course of the interactions between judges, prosecuting counsels and the mother of the child, as well as the alleged father. On the other hand, the normative model of family life and the dominant ideology of women’s and men’s relationships, which emphasise women’s socially subordinate position, are revealed by the selective use of DNA testing in paternity cases, based on the judge’s evaluation of the mother’s sexual behaviour. The article argues that legal attempts to establish the paternity of children born outside marriage—though based on novel technical and supposedly objective procedures—tend, nevertheless, to reproduce the prevailing patriarchal structures. (shrink)

When David Souter was nominated by President Bush to the Supreme Court, he cited John Marshall Harlan as his model. It was an interesting choice. Admired by conservatives and deeply respected by his liberal brethren, Harlan was a man, as Justice William Brennan lamented, whose "massive scholarship" has never been fully recognized. In addition, he was the second Harlan to sit on the Court, following his grandfather--also named John Marshall Harlan. But while his grandfather was an outspoken supporter (...) of reconstruction on a conservative court, the younger Harlan emerged as a critic of the Warren Court's liberal expansion of civil liberties. Now, in the first biography of this important but neglected jurist, Tinsley Yarbrough provides a detailed account of Harlan's life, from his privileged childhood to his retirement and death. Yarbrough examines the forces and events which shaped the Justice's jurisprudence--his early life and often complex family relationships, education at Princeton and Oxford, his work as a prosecutor during Prohibition, Republican Party activities, wartime service in the Army Air Force, and years as one of the nation's preeminent corporate lawyers. The book focuses, however, on Harlan's years on the high bench. Yarbrough weaves together discussions of the Justice's relations with his brethren, clerks, and staff, an examination of Harlan's role in the decision-making process on the Court, and an analysis of his jurisprudence. The Justice's approach to constitutional interpretation exalted precedent, deference to governmental power, and narrow decisions closely tied to case facts; but he also accepted an evolving, creative model of constitutional construction which permitted expansive readings of constitutional rights. Yarbrough's details Harlan's close relationship with Justice Frankfurter, showing how--despite their friendship and alliance--Harlan strongly marked out his own position, both personally and judicially, on the Warren and Burger courts. And he examines the substance and significance of his dissents in such famous cases as Miranda and the Pentagon Papers. Intensively researched, smoothly written, and incisively argued, Yarbrough's biography offers an absorbing account of the life and career of a great dissenter, hailed by admirers as a "lawyer's lawyer" and a "judge's judge." Coming at a time when the high court has begun to adopt many of Harlan's principles, this account provides an essential perspective on the Court, civil liberties, and a pivotal figure in the history of both. (shrink)

In normative reasoning one typically refers to intervals of time across which norms are intended to hold, as well as to alternative possibilities representing hypothetical developments of a given scenario. Thus, deontic modalities are naturally intertwined with temporal and metaphysical ones. Furthermore, contemporary debates in philosophy suggest that a proper understanding of fundamental ethical principles, such as the Ought-Implies-Can thesis, requires a simultaneous analysis of these three families of concepts. In the present article we propose a general formal framework which (...) allows for fine-grained multimodal reasoning in the normative domain. We provide an axiomatization for a novel system of propositional logic encoding the way in which possibilities and norms arising from different sources change over intervals of time. The usefulness of our framework is illustrated by analysing an ancient and particularly challenging `cold case', the Paradox of the Court. (shrink)