_Examines how violence has been conceptually and rhetorically put to use in continental social theory._.

Examines how violence has been conceptually and rhetorically put to use in continental social theory.

This paper interrogates a ‘positive’ view of culture’s (potential) role in widening compliance with international human rights standards, which (1) concentrates on the ‘cultural’ bases of conflict over rights and, in consequence, (2) focuses primarily on cultural interpretation as a means of achieving greater respect for rights norms. The thrust of the paper is that the relationship between culture and human rights norms is much more complex than this positive perspective implies and, this being so, that some of its claims (...) about the potential benefits of cultural interpretation for widening rights compliance are hard to sustain. I substantiate this argument by exploring five challenges to this approach. (shrink)

The reform of rape law remains a vexed enterprise. The wager of this article is that the plural traditions and technologies of criminal law can provide the resources for a radical rethinking of rape law. Parts 1 and 2 return to the historical and structural forms of rape law reform in Australia. These forms of reform illustrate a variety of criminal jurisdictions, and a transformation in the way in which rape law reform is conducted now. Against this transformation, Part 3 (...) takes up the technology of classification in rape law in order to generate a radical legal definition of rape—one which responds to the pain and suffering of the survivor of rape, at the same time as it holds the legal institution before the law. This has important implications, it is suggested, not only for domestic legal systems but also the jurisprudence of rape in international criminal law. (shrink)

Our understanding of the impact of gender on refugee determination has evolved greatly over the last 60 years. Though many people initially believed that women could not be persecuted qua women, it is now frequently recognized that certain forms of gender-related persecution are sufficient to warrant asylum. Yet despite this conceptual progress, many states are still reluctant to consider certain forms of gender-related persecution to be sufficient to warrant asylum or refugee status. One reason for this continued bias is the (...) lack of a framework with which to understand gender-related persecution. I argue that we ought to understand gender-related persecution as resulting from the intersection of individual or state persecution and structural injustice. Structural injustice can be understood as the kind of everyday injustice, harm, and violence that women experience that makes possible the more extraordinary kinds of violence that women are likely to claim as the basis of asylum. Understanding gender-related persecution within the context of structural injustice will, I argue, help us to see it as a legitimate form of persecution and thus allow more just outcomes for women refugees. (shrink)

The current international asylum regime recognizes only persecuted persons as rightful asylum applicants. The Geneva Convention and Protocol enumerate specific grounds upon which persecution is recognized. Claimants who cannot demonstrate a real risk of persecution based on one of the recognized grounds are unlikely to be granted asylum. This paper aims to relate real-world practices to normative theories, asking whether the Convention’s restricted preference towards persecuted persons is normatively justified. I intend to show that the justifications of the persecution criterion (...) also apply to grounds currently lacking recognition. My main concern will be persecution on the grounds of gender.The first section introduces the dominant standpoints in theories of asylum, which give different answers to the question of who should be granted asylum, based on different normative considerations. Humanitarian theories base their claims on the factual neediness of asylum-seekers, holding that whoever is in grave danger of harm or deprivation should be granted asylum. Political theories base their justifications on conceptions of legitimacy and membership, holding that whoever has been denied membership in their original state should be granted asylum. Under political theories, Matthew Price’s theory will be discussed, which provides a normative justification of the currently recognized persecution criterion. The second section provides a descriptive definition of persecution based on Kuosmanen, and evaluates the normative relevance of the different elements of this definition based on the theories presented previously. The third section is devoted to the examination of the normative justifiability of the nexus clause’s exclusive list of the bases upon which persons might be persecuted. The section argues that while the clause does not recognize that persecution might be based on gender, in fact many women experience harms based on gender that fulfil all the normatively relevant definitive conditions constituting persecution. The conclusion shows that although the current law’s preferences towards the persecuted are justifiable, the nexus clause’s limiting enumeration of grounds is not. This applies especially to the exclusion of gender as grounds for granting asylum.Article first published online: 21 DEC 2015. (shrink)

Analysing two reproductive rights claims brought before the High Court of Namibia and the European Court of Human Rights, this article argues that human dignity is not reducible to a recognized warrant to demand a particular set of goods, services, or treatments. Rather, dignity in the contexts in which women experience sterilization abuse would be better characterized as an existential protest against degradation, a protest that takes concrete form in legal demands for equal citizenship. Equality is conceived here as necessitating (...) the elimination of all forms of discrimination against women in public and private life. The dignity as non-discrimination framework developed in the article thus integrates two of the leading interpretations of dignity in contemporary political philosophy – the existentialist approach that attends to the inward cry against degradation and the view of dignity as the equal, public status of democratic citizenship. (shrink)

Dominance feminism and afropessimist theory, despite their critical appearances three decades apart, are undergirded by similar rhetorical strategies, political commitments and argumentative moves. This is the case even as afropessimism’s citational trajectory rarely invokes dominance feminism, and often positions itself as a critique of feminism’s imagined conception of gender as white, one that is thought to be most emphatically announced in the work of scholars like MacKinnon who invest in a gender binary, and in women’s oppressed location in this binary. (...) In this article, I insist on reading dominance feminism and afropessimism together. In so doing, I aspire to challenge afropessimism’s prevailing conception of gender, revealing that while it is often critical of feminist conceptions of gender – particularly conceptualisations of gender that are thought to insist on the shared experiences and positions of women – it actually relies on similar argumentative moves, and even rhetorical seductions, as dominance feminism. (shrink)

How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture should be pursued, (...) suggesting that we retain the label ‘rape’ due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label ‘torture’ for those rapes in which state officials are participants. (shrink)

In this response to the five philosophers who engaged her Toward a Feminist Theory of the State in decades-down-the-road assessments, Professor MacKinnon takes up the central questions in the dialogues they raised on questions of epistemology, method, social construction, racism, and judgment. She re-asserts the centrality of sexuality in gender and sexual abuse in gender inequality and recounts some of the legal consequences of this critique, which she originated.

‘Intersectionality’ is one of the rare pieces of academic jargon to make it out of the university and into the mainstream. The message is clear and well-known: your feminism had better be intersectional. But what exactly does this mean? This paper is partly an exercise in conceptual clarification, distinguishing at least six distinct types of claim found across the literature on intersectionality, and digging further into the most philosophically complex of these claims—namely the metaphysical and explanatory. It’s also partly a (...) reply to Sara Bernstein, who argued recently that the best interpretation of the metaphysical claim is explanatory priority. We’ll argue that duly clarified, it’s far from obvious that feminism had better be intersectional. At the very least, it had better not be only intersectional. (shrink)

The article challenges the claim that human rights, which have constituted one of the central tools by which to establish the truth claims of modernity, can produce freedom and meaningful happiness through the acquisition of more rights and more equality. Third World, postcolonial and feminist legal scholars have challenged the accuracy of this claim, amongst others. The critiques expose the discursive operations of human rights as a governance project primarily concerned with ordering the lives of non-European peoples, rather than a (...) liberating force; and that the pre-given rational subject of human rights is contingent and one of the prime effects of power. I examine the problems with the liberal humanism of human rights by examining not only how it is linked to a specific understanding of the `good life’, freedom and happiness, but also how it closes off other emancipatory possibilities. The acquisition of human rights as objects that an individual has by virtue of being human, represent the terminal limits of human rights, rather than the moment when the human subject becomes empowered and liberated. I draw on queer affect theory to make a critique of happiness, to which I argue human rights are linked, and how the failed or unhappy subaltern subject exposes its normative composition. I discuss the resulting depth of the despair produced from the realisation that this political project cannot realise its promise of freedom and meaningful happiness, compelling a `turn away’ from human rights as an emancipatory project and a `turn towards’ other non-liberal philosophical traditions, in the search for alternative understandings of and space for freedom and happiness. I explore these possibilities specifically within the philosophical tradition of non-dualism. (shrink)

The naming of violence in feminist political campaigns and in the context of feminist theory has rhetorical and political effects. Feminist contention about the scope and meaning of ‘Violence against Women' (VAW) and ‘Sex and Gender-Based Violence' (SGBV), and about the concepts of gender and of violence itself, are fundamentally debates about the politics of feminist contestation, and the goals, strategies and tactics of feminist organisation, campaigns and action. This article examines the propulsion since the late twentieth century of the (...) problems of VAW and SGBV on to global and national political agendas. The feminist theory that underpins the uptake of this new agenda is contested by opponents of feminism. More significantly for the article it is also contested within feminism, in disputes about how feminist political aims should be furthered, through what institutions and with what strategic goals in view. The article aims to show that theoretical and philosophical controversy about the concepts of violence, and sex and gender, are always political, both in the sense that they are an aspect of feminist competition about how feminist politics should proceed, and in the sense that the political implications of concepts and theory must always be a significant factor in their salience for feminist action. (shrink)

Drawing on the author’s archival research in Germany and the US, empirical data about US-allied troop sexual violence during post-World War II occupied Germany suggests a complex interplay between gender, security, silence production, and state identity. Through a feminist security studies lens, this article theorizes about an unexplored, obscured form of de-securitization: the unmaking of a security issue or referent object as active silence. De-securitization as silence provides a unique insight into silence production, gender’s normativity, and security. To move beyond (...) de-securitization’s presumed politicization, the argument identifies specific hypervisibilities and new state-self, dominant memory regimes as acts, discursive representations, processes, or incidents of de-securitization – producing and reproducing active silence and facilitating the making of a newly imagined, ‘good’ German state-self. (shrink)