Social & Legal Studies

Contemporary postcolonial scholarship often argues that common law Aboriginal title and the rights of indigenous peoples are regulated by colonial legal regimes that determine the limits of recognition and subjects indigenous peoples to oppressive forms of government. In this article, I challenge this view by focusing on the application of Aboriginal title in the South African land restitution program. I use theories of articulation and assemblage to illustrate how, in conditions of neoliberalism, Aboriginal title, indigenous rights, and living customary law are co-constituted through litigation and social activism involving both self-identified indigenous peoples and rural peoples who live by customary law. By tracking how Aboriginal title is brought into the efforts of indigenous and rural peoples to assert natural resource rights, we begin to see that this area of international common law is used much more creatively and expansively than is often acknowledged.

Property is both revered and reviled. Praised for its connections to autonomy, agency, power and community, property attracts scorching critiques for its implication in exclusion, inequality and injustice. This article provides a new perspective from which to examine this dual nature of property. Drawing on fieldwork in the United States, Canada, Australia and New Zealand, property is examined in the context of citizen and community-led ‘do-it-yourself’ interventions in the urban environment. Perhaps even more than in formal planning processes, claims about ownership are central to these activities. Finding multiple forms of property at work in the city, and noting that formal legal title is often less important than more informal ownership, this article sheds new light on some of the oldest debates in property. Amongst echoes of Lockean labour-based theory, Hegelian personhood theory emerges as particularly helpful in explaining the intimate connections between property and identity, community and power in the city.

Studies of procedural in-court judicial discretion have highlighted a dilemma between the imperative to reduce it owing to its potential misuse and preserve it owing to its importance in protecting vulnerable groups. This article offers a new framework with which to enter this debate and new quantitative empirical evidence that favours the former position over the latter. Drawing upon 240 in-person observations of Britain’s First Tier Tribunal (Immigration and Asylum Chamber), the article demonstrates that judicial discretionary behaviour that is either vulnerability-neutral, vulnerability-amplifying or correlated with extraneous factors outweighs vulnerability-redressing behaviour, despite the sensitivity of this particular jurisdiction and the guidelines that consequently exist for judges. These findings lend support to calls to limit judicial procedural discretion. The article concludes by offering some cost-effective suggestions about how to do so.

Drawing on the feminist sociological approach, institutional ethnography, this article reveals how young people in a designated neighbourhood improvement area in Toronto, Canada, experience reduced access to justice. Young people’s stories about their interactions with the police in their neighbourhood ground an analysis of the dispersal of justice in large urban centres as shaped by and constitutive of the social relations of race, gender and class. While the research proceeds from young people’s knowledge of their work and lives, the foci of analysis are the objectified forms of thought and action that produce the individual accounts young people share. The research finds that young people’s experiences of diminished relational fairness in their encounters with the police reduce the degree to which they expect full and equal access to other juridical and administrative public institutions and processes. Ultimately, the state’s efforts to produce and manage public safety, as a bureaucratic phenomenon, undermines embodied experiences of safety and access to justice for young people who live in economically disadvantaged and racialized urban neighbourhoods.

This article analyzes the role played by crime victims in social control in the postindustrial United States in the last three decades of the 20th century. Through a synthesis between Zygmunt Bauman’s work on late modernity and Pierre Dardot’s and Christian Laval’s conceptualization of neoliberalism, the article reviews the increasing centrality of the crime victim in penal discourse, particularly in light of the ‘aesthetic turn’ proposed by Bauman and others as representing a deep transition in the way social problems and political actions are understood. More precisely, a society governed by aesthetics is concerned with superficial manifestations of social harms. As such, under this aesthetic turn, public attitudes and criminal justice policies in the United States since the 1970s have related to ideal victims who are devoid of social context. Victims play a symbolic role in amplifying punitive emotions but are denied meaningful services. The article concludes with a call to rethink the ethos of the victim with an eye toward reducing the structural pathologies, such as inequality, poverty, or racial discrimination, that inflict so much harm on so many.