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Contents of Volume 3


Western Liberal Legalism and its Discontents: A Perspective from Post-Apartheid South Africa

-Dr. Narnia Bohler-Muller

Much of the development in human rights is today reflected and understood through the lens of the meta-narrative of western legal liberalism, which inherently inhibits the full progress and utility of the rights discourse. Legalism and formalism work to legitimise the law, and make transformation and alternative formulations of notions of equality and rights impossible, thus perpetuating a status quo that ignores the empowerment of subaltern groups. This article argues in favour of changing the lens through which we appreciate law and legal processes today. Looking at the constitution of post-apartheid South Africa, and subsequent case law, the author introduces the theoretical tool of an ethical reading of the traditional legal concepts - this moves away from interpreting the notions of equality and rights within established meta-narratives, making rights more meaningful and empowering.

States of Exceptionality: Provisional Disability, its Mitigation and Citizenship

In recent years, a number of common law jurisdictions in North America and Australia have delivered judgments, which, among other things, have challenged traditional formulations of impairment and legal renderings of disablement as existing independent of various technologies. In tandem with these legal re-writes, some neo-conservative legal writers have advocated for the reformulation of impdirement along the lines of mitigated disability in contradistinction from voluntary or elective disability - which denotes the bodily and/or mental states of those who 'choose' to remain disabled. Developments in surgical techniques and pharmacology have meant that it is possible to eradicate, neutralise or morph impairment from an 'impaired status' to newly fabricated able-bodiedness. Disability constructed under these circumstances can be figured as 'tentative' and provisional. This paper discusses these developments in intolerance, a trend which implies that impairment as impairment is intrinsically negative and explores what the notion of tentative disability means to the understanding of citizenship, the productive body and the valuing of difference within neo-liberal societies.

-Dr. Fiona A. Kumari Campbell

Masking Identity: The French Headscarf Controversy vis-a-vis Children's Rehabilitation Homes in Bangalore

The growing frequency of terrorist attacks and sporadic acts of violence based on cultural and religious differences points towards the need to rethink policies adopted by multicultural societies towards integrating diverse communities into the national fabric. Indeed, creating a sense of belonging amongst individuals from different cultures has always been a challenge for multicultural societies. In order to achieve this end, many European countries have sought to erase markers of cultural identity from the public domain. For instance, in a recent move, France has banned the use of all religious symbols in its schools. Field research in two children’s rehabilitation homes in Bangalore suggests that efforts to create homogeneity exist at the microcosmic level, parallel to forces seeking to mask identity at the level of the nation-State. Does the policy of ‘masking’ differences in identity in order to create a single, homogeneous identity, which is at work in different ways in both India and France, meet the challenge of forging a sense of belonging in multicultural societies? Is it an effective means of ensuring the peaceful coexistence of distinct cultural groups within a nation-State? Theories of cultural pluralism and assimilationist liberalism answer these questions in divergent ways. This paper seeks to analyze the process of ‘masking identity’ and to evaluate its impact within this theoretical framework.

-Simi Rose George

Special Articles

"Prisoner Never Gave Me Anything For What He Had Done:" Aboriginal Voices in the Criminal Court

Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada: including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by the police, Indian agents and sometimes their Chiefs. Their words were also mediated by interpreters, both linguistic and cultural, and their signatures invariably marked as “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1) the participation of Plains Cree, Saulteaux and Métis peoples, among others, whose traditional values and norms nonetheless seep through the handwritten, translated transcription and alien norms of the Canadian criminal court; and, (2) cases in which Aboriginal complainants who, notwithstanding their substantive inequality, invoked the criminal process to insist that those who wronged them also be punished in accordance with the principles of Canadian law.

-Shelley A.M. Gavigan


Facing the Demons of the Past: Transitional Justice in Gujarat

Scholars of transitional justice have recently suggested that our understanding of transitions need not be restricted to societies moving from authoritarian regimes to democracy. In fact, “non-paradigm transitions” occur in purportedly democratic states as well, in the aftermath of large-scale and State-sanctioned violations of human rights. This article focuses on one such non-paradigm transition occurring in the state of Gujarat in India post the 2002 communal carnage. The author proposes that in addition to retributive responses to the human rights violations, a Truth and Reconciliation Commission should be seriously considered as a means of effecting a real transition to peace in Gujarat.

-Ameya Kilara

Law's Translations: Perceptions from the Field

Implementing the Fundamental Right of the Child to Education: The Case of the Andaman and Nicobar Islands

Children have always been a vulnerable group in society. Their needs are secondary in the agenda of the policy maker, and even when these needs are taken into consideration; it is usually done as a token gesture. This note explores an example of this apathy by examining the status of child rights with particular focus on education in Andaman and Nicobar Islands. While the essay relies primarily on information gathered from the ground in January – February 2005, the issues discussed here have longer shadows. The rights of the child in Andaman and Nicobar Islands, has not been closely examined and the fault lines have never been apparent. The tsunami of 24.12.2004 is not the source of all the problems that children in Andaman and Nicobar Islands face today, but merely added to what already existed.

-Raguvaran Gopalan

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