Should we say "functional diversity" to refer to "disability"?

This article addresses "political correctness" (PC) regarding the rights of people with disabilities and specifically the state of the question in Spain. First, we focus on the expression itself and clarify what is understood by PC. This implies reviewing, albeit briefly, the main conceptual and ideological framework PC is grounded in. Second, we describe the new conceptualisation of disability given by the United Nations Committee on the Rights of Persons with Disabilities, tasked with ensuring compliance with the Convention on the Rights of Persons with Disabilities. In Spain, this Convention is about to give rise to substantial legislative reforms in civil and procedural matters, leading to a turnaround in the way the matter has been traditionally treated. Thirdly, we expose a critique of the demands to turn "functional diversity" into the sole politically correct expression to refer to the condition of people with disabilities. To finish, I come back to the question of PC and present my position on the effects of this doctrine on the prevention of discrimination against marginalised groups.

Political correctness and the right to free speech: the case of preferred pronouns

In this paper I argue for the general duty to refer to transgender people by their preferred pronouns when they are conventional. In the case of non-conventional, tailor-made pronouns, there is no such duty because those so-called “designated pronouns” are not actually functional pronouns. Last, but not least, even though there is a duty of civility to use the designated name and conventional pronoun of trans-people, individuals retain the right to speak out their belief in that sex and gender are biological facts, and thus, the right to state in reference to a transwoman: “She is not a woman”.

Keep Law Alive

An account of the author’s recent book, Keep Law Alive, including: an assessment of the dangers which threaten law and the democracy it depends upon; an analysis of the ethically and intellectually praiseworthy methods and traditions law once enjoyed, using as examples the Model Penal Code, a pair of judicial opinions by Justice Holmes, and an essay on affirmative action; the elaboration of a way of thinking about law not as rules or policy or theory but as an inherently unstable but crucially important structure of thought and expression; and finally some attention to the question, how we might resist the corruption of law and, failing that, and using Augustine as an example, how we might live with its loss.

Consonances and Dissonances Between Legal Realisms

This paper is a comparative reflection of the models of Legal Realism in the Theory of Law, considering the North-American Legal Realism, the Scandinavian Legal Realism and the Brazilian Legal Realism. This article presents the Theory of Realistic Humanism within Legal Realism with the Critical Theory of Law.

The risky temptation of wanting to be the Legislator of the Language

Criticizing the modern, rationalistic temptation to legislate on language, this article argues that issues of 'political correctness' are an aspect of the eternal problem of definitions in law. This problem has in its turn profound connections, on the one hand, with the need, entirely human, for a correct (not one-sided or arbitrary) relationship with reality; and, on the other hand, with the insidious attempt – which is all the same typically human – to deny reality, with its conflicts and ambiguities, and to replace it with a false, less challenging reality of 'objective' certainties. In law, the problem of definitions has historically followed many and different itineraries; this article briefly traces some, trying to show that the ideal of an objective definition – an ideal epitomized in the 'norm' idealized by legal positivism – has always co-existed, in the legal experience, with the different ideal of a subjective definition (dialectical, controversial, negative, refutative), of which the ancient maxims of equity, the regulae iuris, offer a model. The problem of legal definitions in law is then a matter of forms of reason that confront each other throughout the history of law, the one investing on a calculating and instrumental rationality, the other relying on a more porous and flexible reason. In the legacy of this second point of view – which, the article maintains, has more than one analogy with the paths of contemporary Feminist 'Radical' Thought – antidotes can be found to the temptation to legislate on language, which is risky. If objectivity tries to suppress subjectivity, in fact, this is in the name of the illusion, that problems that trouble the human conditions can be fixed, defined, solved once and for all. It is instead the open texture of these problems, which cannot be defined once and for all, that encourages the work of language and thought. And these latter are the resources for a living together really capable of freedom and equality, of change and future.

The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions

The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.

Political Correctness and the Law

This paper aims at calling attention to some of the ways in which “political correctness” can impact the legal field, from relationships in the workplace to language guidelines, from teaching in law school to the evolution of legal definitions, suggesting further space for study and research.

Law and the Janus-faced Morality of Political Correctness

This introduction explores the relationship between Law and Political Correctness (PC), considering different stages (from culture wars on campus to narrative outsider jurisprudences), as well as diverse (contextually instable and often contradictory) narrative webs. This reflective path opens three main different problems: the first concerns the way how the sensitivity to political correctness is programmatically (contingently) pursued through statutory law; the second identifies the difficulties which plurality and fragmentation create, when we consider Law’s vocation for comparability; the third denounces specific institutionalizing procedures and social effects associable to the culture of political correctness. Acknowledging that the integrated discussion of these themes, in their juridical systematic implications, is fundamentally encore à faire, the last part of the text introduces in detail the seven chapters which follow, highlighting the stimulant plurality of perspectives and approaches which they manifest.