Dr Jen Hendry's Publications
The Diffusion of Law The Movement of Laws and Norms Around the World (Ashgate Publishing, Ltd., 2015),
‘Justice for Native Nations: Insights from Legal Pluralism’, Arizona Law Review, 60.1 (2018), 91-113,
Repository URL: http://eprints.whiterose.ac.uk/127727/
This Article makes the case that, despite being underused by U.S. scholars in the field of Indian and Indigenous peoples law, a legally pluralist approach can and does provide vital conceptual insights. Not only does legal pluralism supply an important framework through which to conceptualize and address existing power imbalances between Indian tribes and the federal government, but it also makes instances of interaction between these different and yet connected normative orders—or legal cultures—readily more apparent. Scholarly arguments within this research field in the United States tend to take the form of either wholehearted reliance on constitutional and human rights advocacy to address injustices or the wholesale rejection of the Anglo-American legal system as simply incompatible with indigenous norms and traditions. By contrast, and in proposing an alternative to this academic deadlock, this Article submits that these distinct legal cultures must necessarily interact, and that these interactions are always fertile ones. Drawing on Robert Cover’s concept of “jurisgenerativity” to inform an interactive conception of legal culture, it is argued that this has the capacity to lay a foundation for discursive approaches capable of giving rise to new, mutual traditions.
‘Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids’, Criminal Law and Philosophy, 11.4 (2017), 733-757,
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.
‘Erratum: Reason and Paradox in Medical and Family Law: Shaping Children's Bodies’, Medical Law Review, 25.4 (2017), 713-714,
In this article numerous changes have been made which are listed below. In addition to these, a number of typographical and grammatical corrections have been made throughout. All errors have been corrected online and in print.
© The Author 2017. Published by Oxford University Press; all rights reserved. Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes 'reasonable parenting' or a child's 'best interests' and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G . In this case, Sir James Munby stated that the cutting of both male and female children's genitals for non-therapeutic reasons constituted 'significant harm' for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of nontherapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective-specifically with reference to local paradoxes-to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.
‘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/
‘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,
‘Constitution as Dialogue: Legal Pluralism and the American Experience’, in Constitutional Recognition of First Peoples in Australia: Theories and Comparative Perspectives, ed. by Young S, Nielsen J and Patrick J (Sydney, Australia: Federation Press, 2016),
Repository URL: http://eprints.whiterose.ac.uk/105761/
This collection of essays explores the history and current status of proposals to recognise Aboriginal and Torres Strait Islander Peoples in the Constitution of Australia. The book had its genesis in a colloquium co-hosted by the University of Southern Queensland and Southern Cross University, attended by scholars from Australia and overseas and prominent participants in the recognition debates. The contributions have been updated and supplemented to produce a collection that explores what is possible and preferable from a variety of perspectives, organised into three parts: 'Concepts and Context', 'Theories, Critique and Alternatives', and 'Comparative Perspectives'. It includes work by well-regarded constitutional law scholars and legal historians, as well as analysis built from and framed by Indigenous world views and knowledges. It also features the voices of a number of comparative scholars – examining relevant developments in the United States, Canada, the South Pacific, the United Kingdom, New Zealand and South America. The combined authorship represents 10 universities from across Australia, the United Kingdom, the United States and Canada. The book is intended to be both an accurate and detailed record of this critical step in Australian legal and political history and an enduring contribution to ongoing dialogue, reconciliation and the empowerment of Australia's First Peoples.
‘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.