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Adrien K. Wing

This chapter provides an overview of the intersection between international law and feminism. It predominantly discusses scholarly writing, but also some major documents and institutions. The material first emphasizes how feminism has developed within various international law subfields. Then it focuses on a major offshoot from traditional international legal jurisprudence known as Third World Approaches to International Law (TWAIL). Next, the chapter shows how an international law focus strengthens and broadens traditionally US-oriented feminist legal theory. The related field of comparative law, involving the law of one country or several countries, is briefly covered. The next and major section then highlights Critical Race Feminism, an emphasis on women of color, an area that intersects with every area previously reviewed. The conclusion notes the work that remains to be done.

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Edited by Robin West and Cynthia G. Bowman

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Edited by Robin West and Cynthia G. Bowman

The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories.
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Irem Çağlar and Berna Akçali Gür

Gender-based violence is recognized as a type of discrimination in international human rights law. However, the European Court of Human Rights (ECtHR)did not establish a connection between the prohibition of discrimination in securing rights under the European Convention on Human Rights and gender-based violence until 2009. This approach changed with the court’s landmark Opuz decision. In Opuz, the court adopted a feminist interpretation of the due diligence standard. This interpretation fundamentally challenged the traditional understanding of state responsibility for human rights violations in the ‘private sphere.’ Accordingly, member states are now responsible not only for their own actions but also for their lack of due diligence in their failures to prevent or respond to gender-based violence and take reasonable steps to prevent it. Although the ECtHR still fails to acknowledge gender-based violence as a type of discrimination in some cases, this chapter suggests that the Opuz decision constitutes a milestone.

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Chris Reed and Andrew Murray

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Chris Reed and Andrew Murray

From Chapters 1 and 2 it follows that the internal perspective of the resident of a rule-system such as that of a nation-state cannot tell us anything about the authority of law in cyberspace. From the external perspective of the law’s addressees we see that it is their collective acceptance of a rule’s authority which generates the normative obligation to obey it. From this external perspective, the rule of recognition they use appears to be that a cyberspace actor should obey the authority claim if it appears to be legitimately addressed to it, and that will be the case if the actor perceives itself as a member of the community which the lawmaker regulates. If an actor is a member of multiple communities, the most authoritative claims will come from the closest connected community. This means that no state law claim has any innately stronger authority claim than any other, but rather that they compete with each other for acceptance in cyberspace.

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Chris Reed and Andrew Murray

Chapter 4 asks how a lawmaker might achieve primacy over all the other purported lawmakers in cyberspace. Although law is framed as commands which demand obedience, we find that law does not actually function as a form of control, achieving compliance through fear of sanctions. Each individual law’s claim to obedience becomes part of the wider normative landscape, and the factor which determines whether it has authority is the response to it from those to whom it is addressed. Lawmakers cannot use code to achieve their desired control by mandating the shape of code because it is equally as susceptible to subversion and evasion as law. In both cases, the controls desired by lawmakers are subject to acceptance by the regulated community, and the community reactions will often force a reshaping of law or code to achieve that acceptance.

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Chris Reed and Andrew Murray

Chapter 1 asks why any particular state’s law should have authority outside its geographical territory, and particularly in cyberspace. A state’s constitution is not binding on cyberspace users outside its territory and thus cannot give its laws any collective authority, as a legal system, in cyberspace. Law therefore must derive from acceptance by cyberspace users of a particular state law’s authority. But this does not confer general authority on the other laws of the state. This means that lawmaking authority in cyberspace has to be assessed at the level of individual rules of law, not at the law system level. Each rule derives its authority from acceptance by those it claims to regulate. It thus has authority over the members of the lawmaker’s extended community in cyberspace, but that community is dynamic and constantly changing. So a law has authority over a cyberspace user only whilst that user is a community member.

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Chris Reed and Andrew Murray

When legal authority claims compete with each other in cyberspace, lawmakers need to respond by adopting strategies which increase the chance that their claim is chosen for acceptance. The legitimacy of their claims plays an important part here, because illegitimate claims will not be listened to. Constitutional legitimacy is unhelpful because all lawmaking authority claims are likely to be legitimate in a constitutional sense. Instead, the lawmaker needs to concentrate on other aspects of legitimacy, particularly the output legitimacy of its laws, which is based on the extent to which the claim appears to be addressed to the cyberspace actor, its congruence with the existing technical and normative environment, and how far the claim appears to be fair, just and likely to achieve its aims. In cyberspace, output legitimacy is what gets the law’s claim a hearing.

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Chris Reed and Andrew Murray

In Chapter 8 we examine the role of lawmakers in establishing and maintaining the rule of law in cyberspace. We identify a core ‘laundry list’ that seems to apply to all definitions of the rule of law, but its six elements are all problematic in cyberspace. Although (1) law is usually set forth in advance and thus prospective, the ways in which it has sometimes been applied by courts and regulators have produced effects which are in practice retrospective in cyberspace. The requirements that (2) law must be made public, (3) law must be general, and (4) law must be clear, are severely challenged. The requirement that (5) law must be stable and certain fails because of the cumulative pace of legal change; and the necessity that (6) law must be applied to everyone according to its terms is not achievable in a space where identically situated cyberspace actors will face differential claims to authority and potential enforcement action from the multiplicity of applicable laws. The jurisprudential analysis in the preceding chapters shows that by recognising that laws can only have authority for their community members, both chosen and found, and restricting any claim to apply them outside that sphere, the rule of law can be re-imposed in cyberspace.