Dr Jen Hendry's Publications
The Diffusion of Law The Movement of Laws and Norms Around the World (Ashgate Publishing, Ltd., 2015),
‘Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids’, Criminal Law and Philosophy 2016,
DOI: 10.1007/s11572-016-9405-6, Repository URL: http://eprints.whiterose.ac.uk/105759/
In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
‘Human Rights, Indigenous Peoples, and the Pursuit of Justice’, Yale Law and Policy Review, 34.2 (2016), 351-386,
Repository URL: http://eprints.whiterose.ac.uk/102795/
There are three major problems with the use of the rights-based approach to tackle issues of Indigenous justice: 1. It privileges (the worldview of) the dominant legal culture; 2. It artificially restricts the conversation about causes of and solutions to problems of Indigenous justice; and 3. It masks the inherent tension between human rights and legal pluralism. We explore the first of these problems in Part I by examining what is meant by a “rights-based approach,” how those ideas came into being, and how they differ from Indigenous conceptions. We address the second problem in Part II, which examines six representative U.S. cases and the patterns that can be derived from those cases. In Part III we turn to the third issue, which we operationalize in order to begin building possible solutions to the problem and possible alternate approaches to achieving justice for Indigenous people.
‘How Far Is Too Far? Theorising Non-Conviction-Based Asset Forfeiture’, International Journal of Law in Context, 11.4 (2015), 398-411,
DOI: 10.1017/S1744552315000269, Repository URL: http://eprints.whiterose.ac.uk/89915/
Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory’s unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.
‘Contemporary Comparative Law, Between Theory and Practice' - Review of Review of Esin Orucu & David Nelken's Comparative Law: A Handbook’, German Law Journal, 9.12 (2008),
Contemporary comparative law is perhaps one of the most awkward of all legal academic areas, being as it is contested from all sides and even from within. Much of this contestation revolves around questions of scope, purpose and utility, not to mention considerations of methodology, epistemology and applicability. In short, it could be said that, whether they consider themselves to be comparative lawyers or comparatists-at-law, proponents of the discipline agree on little other than the innate importance of undertaking comparative work.
‘Governance, Proceduralisation and Justice: Some Challenges to the Legal Paradigm’, Law & Critique: : Special Issue on Governance, Civil Society & Social Movements, ed. by Blecher M and Hendry J, 19.3 (2008), 345-361,
In 1989, Rudolf Wiethoeltner alleged that we are witnessing a 'failure of law' in terms of its obligation to achieve 'just law'. This paradox at the very heart of law - in essence, the impossibility of the realisation of legal justice twinned with the law's inability to cease trying to attain this goal - has been accommodated to a degree by the utilisation of a proceduralist paradigm that relies upon the contingency of governance, but this is now coming under renewed scrutiny. This article will put forward three arguments in this respect. The first section will argue that the turn to governance and the resultant procedural paradigm are both consequences of the 'failure of law'; the second will point to the inherent weaknesses of the procedural paradigm that can be said to stem from this very failure; while the third will discuss some of the challenges issued to those still reliant upon the legal paradigm.
‘Unity in Diversity': Questions of (Legal) Culture in the European Union’, Journal of Comparative Law, 3.1 (2008), 289-294,
‘Legal comparison and the (im)possibility of legal translation’, in Comparative Law - Engaging Translation ([n.pub.], 2014), 87-103,
Repository URL: http://eprints.whiterose.ac.uk/90228/
‘Legal Pluralism and Normative Transfer’, in Order from Transfer: Comparative Constitutional Design and Legal Culture, ed. by Frankenberg G, Studies in Comparative Law and Legal Culture series (Cheltenham, UK: Edward Elgar, 2013), 153-170,
Repository URL: http://eprints.whiterose.ac.uk/90231/
‘The double fragmentation of law: legal system-internal differentiation and the process of europeanization’, in Integration through law Revisited: The making of the European Polity, ed. by Augenstein D, 1 (Ashgate Publishing Ltd, 2012), 157-171,
Repository URL: http://eprints.whiterose.ac.uk/43067/
‘Facebook and the Commercialisation of Personal Information: Some Questions of Provider-to-User Privacy’, in Perspectives on Regulating Technologies, ed. by Goodwin ME and Koops B-J (Nijmegen: Wolf Legal Publishers, 2010),
Most of the debate about online social networking sites, such as Facebook, has thus far revolved around questions of privacy and access to personal information. Users of such services, should they choose to exercise them, have a myriad of privacy options that allow them to restrict access to their own personal information posted online, and the privacy policies of such sites are abundantly clear that the making of such choices is the responsibility of the Users themselves. However, due to the focus resting upon these peer-to-peer privacy questions, those relating to the service provider-to-User relationship have been overlooked. This paper seeks to highlight some of the more subtle privacy issues of (what we will call) the ‘Facebook debate’ in terms of two main considerations: the access to and the control of personal information on the part of the provider.
‘Legal Integration in the EU: the unitas in diversitate Conundrum and the Importance of Considering Culture’, in Law, Liberty, Morality & Rights, ed. by Gizbert-Studnicki T and Klinowski M, 1 (Warsaw: Wouters Kluwer Polska Oficyna, 2010), 129-138,
An obvious downside of any slogan or motto is that it is necessarily a simplified version of what it attempts to convey. Thus while they may provide a handy hook, the very ‘catchiness’ and accessibility of mottoes often serve to disguise the complexity of the concept(s) at their heart. This paper submits that the European Union watchword of unitas in diversitas, or ‘united in diversity’, suffers from this problem, in particular in terms of its utilisation in Europeanisation debates involving law and legal culture. The aim of this paper is to present the argument that the optimal way of conceptualising ‘unity in diversity’ in the European Union is as an expression of unity without uniformity and diversity without fragmentation, and this will be done in two sections. This paper will firstly analyse the concepts of ‘unity’ and ‘diversity’ and then their the juxtaposition, while the second section will look to considerations of culture in order to determine whether it can be seen as either a positive or negative factor in the process of the Europeanisation of law. In doing so it will present two alternative dichotomies of the concept, namely: culture as grounds for unity or grounds for diversity, and culture as instrumentalist or contextualist.
‘Rivendicare il comune. Governance, società civile e movimenti sociali’, in in (2009) Rivendicare il comune. Governance, società civile e movimenti sociali, ed. by Allegri ACDG and others (Roma: Ediesse, 2009), 363-371,
The 'Fertile Dilemma of Law': Legal Integration and Legal Cultures in the European Union, (Tilburg Institute of Comparative & Transnational Law Working Paper, 2009),
The aim of this paper is to develop an analytical framework for legal integration (integration through law / integration of law) in the European Union from the perspective of legal culture. We advance a relational conception of legal culture that builds on the tension between, and the reciprocal adaptation of, legal rules and social norms (process) in a given institutional order (unit). Drawing on Paul Bohannan's notion of double institutionalisation of law, we first analyse the relationship between legal rules and social norms in the state legal order. Secondly, we submit that due to the enhanced level of integration of the European polity as compared to traditional international law-type entities it is possible to cognise a European Union legal culture which is simultaneously distinct from and mutually constitutive of the legal cultures of its Member States. We conclude that from the perspective of legal culture, the challenges of European integration are not adequately described either in terms of a 'conflict of laws' or in terms of a 'clash of cultures'. Rather, legal integration in the European Union should be understood as building on parallel but interlocking processes of double institutionalisation of law at the European and the national levels.
Legal Integration in the EU: the unitas in diversitate Conundrum and the Importance of Considering Culture, (Tilburg Institute of Comparative & Transnational Law Working Papers, 2009),
An obvious downside of any slogan or motto is that it is necessarily a simplified version of what it attempts to convey. Thus while they may provide a handy hook, the very 'catchiness' and accessibility of mottoes often serve to disguise the complexity of the concept(s) at their heart. This paper submits that the European Union watchword of unitas in diversitate, or 'united in diversity', suffers from this problem, in particular in terms of its utilisation in Europeanisation debates involving law and legal culture. The aim of this paper is to present the argument that the optimal way of conceptualising 'unity in diversity' in the European Union is as an expression of unity without uniformity and diversity without fragmentation, and this will be done in two sections. This paper will firstly analyse the concepts of 'unity' and 'diversity' and then their juxtaposition, while the second section will look to considerations of culture in order to determine whether it can be seen as either a positive or negative factor in the process of the Europeanisation of law. In doing so it will present two alternative dichotomies of the concept, namely: culture as grounds for unity or grounds for diversity, and culture as instrumentalist or contextualist.