4142 The politics of Law: Democracy in transition or a setback?

Room: C4.02


Chair: Maria Eduarda Gonçalves | ISCTE-IUL, DINÂMIA'CET-IUL

Joanne Myers | Marist College

No Justice and Liberty for All: Constraining Citizens




In today’s neo-liberal world we think of citizenship in principle as democratic—it is the goal of liberal democracy with a liberal economic system to be a nation of good productive citizens. This principle implies that citizens are equal in status, having the same access to social justice and opportunities. But citizen is not just a binary status: citizen or non-citizen; norms, policies and laws mark some citizens as other, as second-class citizens, and still others as failed citizens, not to mention the non-citizens.  We, the enfranchised and empowered people, and our officials, and representatives tend to think, if we think of the othered citizens at all, as citizens deserving of their unequal status.  In the American neo-liberal republic we practice a form of democratic Calvinism pre-determining the treatment of citizens, for example, if they are considered virtuous citizens, those who attain the markers of citizenship, those who are property owners, productive, participatory, patriotic and re-producing more citizens, they are citizens are deserving all rights and privileges; if the citizen is marked by not attaining one (or more) of the markers, living in public housing, for example, they are not deserving of all the rights and privileges guaranteed by the government.
Thus, if citizens are not seen as virtuous good citizens, we not only tolerate them, we treat them differently—we control and regulate them via social norms, policies and laws. While there  is the rhetoric of recoverable and attainable equality, it is individualized to a fault (i.e., if only they worked harder,, they would have more access to material goods). Their status as second-class citizens becomes entrenched. From this entrenched position, could these citizens be regulated into non-citizenship?  Who would notice, who would care?  How do these invisible constraints, the web of laws and practices conspire to keep social political movements in place, without the possibility of achieving their goals; Thus, allowing the venting of frustrations but maintaining the status quo.
This paper, part of a larger project looks at the unseen to most  laws, policies and norms which constrain  many in second class position and maintain the status quo.  Is this justice and liberty for all?

Dee Smythe | University of Cape Town

Pathways to Justice in South Africa




The South African context is one characterised by a history of trauma and violence. And of unresolved injustice. Its contemporary reality is of enduring inequality and, in particular, of continuing racial injustice inscribed onto its landscapes and institutions. Race, especially, intersecting with class, gender and sexual identity and orientation, informs the risk of victimisation and continue to circumscribe access to a range of social goods, including justice. Poverty enables and reinforces everyday violence. It is also, of course, a context of overlapping legal orders and social norms, with people moving between multiple, often intersecting, sometimes antagonistic, regulatory nodes, across the lifespan of their disputes and even at moments of crisis. In this paper I consider the rejection of state law by those advocating for the elevation of traditional courts. I am particularly interested in the typification of state courts as "white courts imposing white laws". This work draws on empirical data collected through interviews and workshops with criminal justice actors and traditional councils over the last 5 years.

David Oliveira | UFC/UECE

Ideology in the Brazilian Political Amnesty




This paper is about the discursive-ideological disputes about the political amnesty following the Brazilian dictatorship of 1964-1985. The study analyzes reports of the Amnesty Committee of the Ministry of Justice and of the Ministry of Defense, legal texts and ten interviews carried out with officers who were granted amnesty and with those who were left out of the amnesty process. We adopt the theoretical-methodological approach of Critical Discourse Analysis according to Fairclough (1992, 2003, 2010). The following points summarize the results of our analysis: the officers who were not granted amnesty represented it as something to be forgotten; they argued that amnesty aimed at appeasing society, that in backing the military coup they had been ´revolutionary´ defenders of democracy. As to those who were granted amnesty, they understand amnesty as memory; they say that social appeasement was to be reached not in oblivion but in justice and in making those responsible for torture pay for their crime. In each group, a discourse can be linked with texts and government practices that widen or restrict the rights of officers who were granted amnesty. There is a shared discourse between those who were granted amnesty and the Amnesty Committee, in that those who were granted amnesty directed their interviews to the need to widen their political rights; the same can be said about the texts and practices of the Amnesty Committee. There is also alignment of the discourse of the Ministry of Defense with the officers who were left out of the amnesty process, in the sense that both restricted the rights of the officers who were granted amnesty, establishing a difference between these officers and others, even taking them out of the military statute.

Caio Santiago Fernandes Santos | Universidade de São Paulo

The effectiveness of social rights in Brazil: changes after 1988




This article aims to compare the effectiveness of economic and social rights in Brazil between the decades of 1990 and 2000. Within the scope of sociology of law, it develops a review of interdisciplinary literature which identifies changes in the effectiveness conditions of these rights. This article concludes that changes related to State model, public policy and economic policy increased the effectiveness of economic and social rights in Brazil during the years 2000, compared to the context of the 1990s. Thus, it corroborates to the ideia that effectiveness of social and economic rights depends not only of legal factors, such as validity and enforcement by courts, but mainly of political and economic factors.

Lucia Bellucci | Università degli Studi di Milano

Media Law and Democracy in the European Union: The Case of Hungary




This paper aims to analyse how media laws strongly affected democracy in Hungary. It argues that they contributed to the shaping of an “illiberal democracy”. It shows that this goal has been achieved in the media sector, as well as in other areas of the Hungarian society, through an increased production of norms. This paper also addresses the European Union (EU)’s response
to the changes in the state-society/law- society relations that have occurred in Hungary. It argues that this response is very complex and therefore the EU has been a “giant with tied hands”.



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