We open this issue with an interview with Dr Kirsten Campbell of Goldsmiths, University of London. We explore the application of Bruno Latour’s concept of legal construction of ‘the social’ to the understanding of post-conflict justice mechanisms. Dr Campbell explains how Latour’s theory relates to her research work focusing on the operation of international criminal law (in the International Criminal Tribunal for the former Yugoslavia) and transitional justice mechanisms in Bosnia and elsewhere.
The leading article ‘Asylum and the Common: Mediations between Foucault, Agamben and Esposito’ by Serene John-Richards offers an innovative and critical approach to the discussion about the rights of asylum seekers in the UK. Recalling Foucault’s notions of state racism and hierarchisation, she argues that both play a significant role in enabling destitution of asylum seekers. She then discusses Agamben’s concepts ofhomo sacer and bare life which she uses to show the similarities between the legal situation of asylum seekers in the UK and their de facto destitution. Finally, she examines Esposito’s paradigm of immunisation to argue that asylum seekers are seen as to represent a threat to the preservation of individual identity.
With ‘A Critique of Enlightened Shareholder Value: Revisiting the Shareholder Primacy Theory’, Collins C Ajibo takes a new look at the meaning of section 172 of the Companies Act 2006. He examines the theoretical debates surrounding the statutory re-conceptualization of the traditional common law shareholders primacy into ‘enlightened shareholders value’ and addresses the practical considerations on how this section operates and how it is enforced by the courts. He argues that the biggest weakness of section 172 lies in its enforcement constraints and advocates for the courts to adopt a teleological interpretative approach to plug the loophole in stakeholder protection.
We are very pleased to include an article by our patron, Sir Terence Etherton, Chancellor of the High Court, in which he discusses the scope of proprietary relief for breach of fiduciary duty. His analysis, which is based on the approaches of the common law and equity to proprietary relief, examines the significance of the departure from the coherent equitable principles of AG of Hong Kong v Reid in the recent decision in Sinclair Investments (UK) Limited v Versailles Trade Finance Limited. Sir Terence argues that Sinclair introduces problematic principles in relation to opportunity gains obtained by fiduciaries in breach of their fiduciary duties and maintains that, if there is to be any departure from Reid, there must be a sound basis for doing so and one which will leave the law both coherent and internally consistent.
In ‘The Concept of Citizenship: Multicultural Challenges and Latin American Constitutional Democracy’, Helga Maria Lell considers notions of citizenship in Latin American multicultural societies. She argues that certain constitutional statements of equality may operate at only a rhetorical level and that, although certain rights are formally granted to every citizen, it is often the case that certain members of society are not able to exercise these rights. The conclusion she draws, therefore, is that while legal and political rights are formally granted to minority groups, administrative and social conditions make such rights unattainable to the very groups that they were designed to help.
Inspired by his personal accounts of a visit to the Tuol Sleng Genocide Museum in Phnom Penh, Cambodia, Asad Rizvi in the article ‘The Dislocated Children of Violence and Memory: Ghostly Apparitions of Injustice in the Legal, Literary, Cultural and Social’, argues that an excessive degree of empirical violence produces ‘ghosts’ which occupy socio-cultural institutions and remain present in national consciousness. His hypothesis is illustrated by the analysis of the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC) and other transitional justice institutions. Despite the attempts to deal with the past, he argues, ghosts linger in the psyche of the nation and possess its instruments such as law, literature, language and the arts.
In ‘Brazil’s “New Middle Class” and the Effectiveness of Social Rights through Consumption: A Dialectic of Inclusion and Exclusion’ Enzo Bello, Renata Piroli Mascarello and Rene José Keller examine how consumption becomes the means for the realization of social rights and how at the same time it contributes to the fortification of citizenship and social inclusion. Consumption in Brazil, they argue, is seen as a way of gaining a greater autonomy and it reflects the creation of the ‘new middle class’. Coming from the materialist dialectic approach the article identifies the points of conflict and convergence between the social façade (consumer) and the political façade (citizenship) of the person.
This issue also includes an expanded features section which, in addition to the opening interview, features two book reviews. The first one, by Dr Jose Bellido, looks at Concepts of Property in Intellectual Property Law edited by Helena R Howe and Jonathan Griffiths. The second, by Devin Frank, evaluates Privacy, Due Process and the Computational Turn edited by Mireille Hildebrant and Katha Vries.
— The Birkbeck Law Review Editorial Board