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This paper provides a conceptual intervention through an analysis of the myths surrounding agricultural citizenship and migrant work that underlie the temporary foreign worker program in two settler countries: Canada and Israel. The paper offers a brief insight into the ideologies around farm work that informed the colonisation and dispossession of Indigenous peoples and the expropriation of non-citizen labour. It begins with a historical overview of how agriculture was used as a tool of colonisation even as settlers struggled to cultivate Canadian lands because of the seasonal nature and the persistent lack of labour. From the time of Confederation, agriculture began to be intimately tied with immigration policies culminating in the Seasonal Agricultural Worker Program (SAWP) that persists to this day. The paper then expands the analysis to Israel to show how other settler nations have also followed similar ideological and policy trajectories. The paper illustrates how racial capitalism intertwines with settler colonial practices discursively and institutionally through immigration policies.

In this third chapter of the book, The Right to Say No, Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, (Hart, 2017) we provide a big-picture perspective on the long and bumpy road taken by many of the world’s countries in moving towards legal recognition that sexual assault can occur in a marital relationship and in the provision of a criminal law remedy for this form of gendered violence. We begin the chapter by articulating our arguments about why engaging the power of criminal remedies is necessary to the struggle to end sexual violence against women in marriage, particularly with reference to criminal law’s importance in expressing fundamental social norms. Section II moves to a critical review of the historical origins and ideological justifications underpinning the marital rape exemption in diverse societies. We show how similar themes occur across very different social regimes.

Workers with temporary immigration status have become the economic reality in several countries, as these workers provide a temporally mobile, cheap workforce that is responsive to economic vicissitudes and anti-immigration sentiment. Temporary foreign workers (TFWs) in low-wage sectors such as agriculture are tied to a single employer, have no access to their family and to permanent residence, and face overwhelming barriers in accessing justice. TFWs spend years residing and working outside of their country of nationality and are unable to be self-sovereign agents either in their countries of origin (because of lack of residence) or in their countries of sojourn (because of lack of nationality). While there have been instances where TFWs were able to make individual legal claims for labor violations in the country of sojourn, collective mobilization against the TFW program itself is exceptional. Collective mobilization represents acting as (partial) citizens, as the claims resemble self-determination claims on behalf of the entire TFW collectivity. How do TFWs and their allies, against all odds, mobilize the law to make collective claims and produce citizenship from below?In this research, I critically examine Israel and Canada, countries that have very similar TFW programs in agriculture but represent two contrasting types of legal mobilization against these programs. Israel is a case of “top-down” constitutional litigation where the results were court-ordered changes to the TFW program. Canada represents a case of legal mobilization “from below” where law is used subversively as a tool for larger political action. What explains the different pathways to legal mobilization in Israel and Canada?In addition to contributing new empirical data and theoretical conceptualizations of the different ways in which the law can be mobilized, my dissertation combines legal mobilization and social movement theories to offer an analytical framework to understand what affects the type of legal mobilization. TFW mobilization is situated in two broad social movements, labor movements and migrant rights/citizenship movements. I frame legal mobilization in the TFW context as a form of anti-hegemonic, contentious collective action and show the complex interactions between the political and discursive environment (political opportunity structure), the legal environment, and the support structure for mobilization (resource organizations).I show that despite barriers to access and courts' unwillingness to overturn immigration law, the law can be collectively mobilized on behalf of TFWs. The pathways to legal mobilization depend on legal opportunities and type of resource support. Constitutional litigation is initiated by cause-driven lawyers or legal organizations, but their framing of issues is constrained. Grassroots, solidarity organizations, in contrast, use the law as a tool for the broader goals of worker mobilization and social change. With the support of such organizations, TFWs are able to articulate their demands collectively, engage in direct action and political mobilization, and demand changes to the TFW program. My comparative historical analysis of Israel and Canada shows that legal and discursive strategies, however, depend on the historical political legacies and current political and economic environments. Elite power and ideological discourses are entrenched and distributed in the context of TFW programs. Political contestation impacts constitutional challenges as well as grassroots mobilization. My dissertation further adds to citizenship theory in three ways. First, it disrupts prevalent myths about the agency of TFWs and their lack of rights consciousness. Second, it offers the possibilities for meaningful change to TFW programs and advances an agentic theory on access to citizenship. Lastly, it adds grist to the conception of “citizenship from below” through the evidence of jurisgenerative practices of TFWs.

This chapter focuses on political issues that arise when claims for gender justice, such as the call for criminalising marital rape, are made in societies or states with pluralistic legal systems, especially with customary and Indigenous law systems.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. Failure to criminalize sexual violence perpetrated by a husband (or intimate partner) effectively facilitates and condones a private legal space within spousal relationships where sexual assault and coercion are permissible. This legal abandonment of married women’s rights to liberty, autonomy, self-determination, and bodily security creates a class of women with lesser legal rights. The state’s insulation of marital rape from criminal sanction is also incommensurate with women’s equal citizenship and equal enjoyment of all other human rights.

Arizona has been in the news for the past few years not only for its vituperative, anti-immigrant polices, but also for the impressive immigrant rights movement that continues to spawn new coalitions and new activisms. The large numbers of cases that were and continue to be litigated and the innovative use of law to mobilize present a paradox since it is the law that constructs the “illegality” of undocumented immigrants, providing them very limited recourse to rights claims.

A recent report identifies that more than half of the world’s countries exempt marital rape from criminal sanctions. The human rights violations inherent in acts of violence against women have now been well recognized. Yet somehow this particular form of gendered violence has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. According to a study by the United Nations Secretary-General, “[t]he most common form of violence experienced by women globally is intimate partner violence” including “a range of sexually, psychologically and physically coercive acts.” The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. Other research suggests that approximately 40% of all assaulted women are forced into sex at one time or another by their male partners.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

Many scholars have theorized that judicial review can provide a “friendly hand” to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences – to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful “un-juridification” by looking at American immigration policy.

The past decade has seen an upsurge in temporary foreign worker (“guest worker”) programs, which have been described as being “close to slavery” because they indenture the worker to work for a specific employer to maintain their visa status and limit access to permanent residence in the host country. The programs exemplify the dilemma between sovereignty and universalism. States claim to support universal labour rights but maintain absolute sovereignty over the legal status of foreign workers, providing limited, differentiated rights. The paper offers a normative argument, supported by empirical data from Canada, Hong Kong, United States, and Israel, that citizenship status continues to be paramount for accessing even universal (personhood-based) labour rights for these workers.