Since the late 1980s, following the transition to democratic rule in Latin America, criminal courts all over the continent have been going through a process of continuous reform. Reformers introduced an adversarial-based procedural system, arguing that it would guarantee due process and greater transparency and accountability. However, in recent years, the emphasis of this reformist narrative has changed from expanding defendants' rights towards improving the efficacy of the system. This paper explores how the original principles of transparency and accountability have been upheld in criminal courts in one of the first areas of jurisdiction to implement those changes: the Province of Buenos Aires. Based on an analysis of data from forty-five in-depth interviews with key informants and court observations, this paper explores how the reforms developed a managerial rationality in criminal courts that may undermine the due process in Latin American jurisdictions that have undergone similar democratic reform processes.

A current trend in sociology characterises the end of the twentieth century as obsessed with risk. Ulrich Beck and Anthony Giddens are perhaps the leading expositors of this theme. Both emphasise a break with the past as the last millennium approached its conclusion, whereby changes in patterns of work, technological developments and the demise of traditional social forms have ushered in a new modernity. In their view, social organisations became more reflexive in their assessments of the circumstances of daily life, at a time when new technologies created the possibility of damage on a global scale. The result in the new social world is a society focused on risk. Some aspects of this assessment are uncontroversial. New technologies have emerged, whilst the role of the nation state has changed since its apogee in the nineteenth century. Other aspects of this new vision are, however, empirically more problematic. Furthermore, the degree to which social changes actually had the effects identified by Beck and Giddens remains an open question. Using the early twentieth-century regulation of mental defectives as a case study, this paper will interrogate this ‘discontinuist’ vision, exploring whether and how our understanding of risk has changed.

The paper is an attempt to examine how Carl Schmitt's constitutional theory can be useful to analyse the Constitution of the State of Israel designed in the late 1940s – the impact of which Jacob Taubes once certified. The author analyses three projects created then by Leo Kohn through the prism of Schmitt's concept of Verfassung and Verfassungsgesetz. He also reads in the context of Schmitt's philosophy (from Constitutional Theory and The Nomos of the Earth) the constitutional situation of Israel as a country where, first, the Constitution has not been passed and the basic matter of its legal system is regulated by the Basic Laws; second, citizens of Arab origin are excluded from the national community; and third, the borders of the state remain fluid and change due to the constant partition of the land.

This is a paper about promulgation, and whether it is a sine qua non of law. The promulgation question has been treated occasionally in the jurisprudential literature, although typically only as a subordinate theorem. This paper does not attempt a thorough conspectus, seeking rather to serve as an introductory to what is a longstanding problem of general interest and concern. An argument for the proposition that laws are things that can be known will be distinguished from two other ways of responding to the promulgation question, which may be attributed respectively to the late H. L. A. Hart and Lon Fuller. The paper defends this proposition about artefactuality and access, and deals with a number of awkward consequences that appear to ensue from its acceptance.

The Homelessness Reduction Act 2017 represents the most significant change to the rights of homeless people in England for decades. Through an analysis of the history of homelessness legislation in England, but focusing on the ‘ground-breaking’ 2017 Act, this paper explores how the homeless population is represented and ‘constructed’ in this new legislation and what this tells us about the place of homeless people in our society. In so doing, this paper exposes how the 2017 Act – a state instrument of apparent homelessness prevention – can be read and understood as contributing to rather than obviating the marginalisation and social exclusion of homeless people.

This paper considers experiences of penal and voluntary-sector interventions in the lives of young people labelled as ‘troubled’ or ‘at risk’ of criminal behaviour. Drawing on data from a case-study conducted in the north of England, this paper focuses on the narratives of young people ‘on the margins’ of society who were involved with a range of community-based interventions, specifically youth clubs, a support group and a mandatory youth justice course. We consider how young people experience and respond to stigmatising elements prevalent in the structured interventions and everyday interactions with the institutions and agencies intended to support them. We argue that ‘promotive’ relationships between young people and the adults working with them enable young people to challenge risk-based identities and navigate the barriers they face.

Many cetaceans are borderline persons and, as such, have a right to life. This is partly a normative and partly a positive legal claim. While many philosophers agree that cetaceans possess limited moral rights, it can also be shown that most states already behave as though they possess limited legal rights. The most basic of these, the right to life, reflects shifting contemporary norms – especially given scientific evidence as to cetacean sentience, intelligence and autonomy – and the consolidation of customary international law. The recent decision of the International Court of Justice in Whaling in the Antarctic (2014) includes important obiter dicta to this effect and arguably suggests an avenue for future doctrinal development in this area. Nevertheless, while the cetacean right to life already exists, there are a number of obstacles that preclude its enforcement. Perhaps the most significant of these remain the traditional status of the world's oceans as a global commons and the weak sovereignty of international law.

This article examines the representations of law and legal actors offered within two classic American films: To Kill a Mockingbird and Judgment at Nuremberg. It has previously been argued that these films belong to a ‘heroic tradition’ within American cinema; one that idealises both men of law and man-made law and that had its golden age from the mid-1950s through to the end of the 1960s. It is argued here that these films offer a more complex and far less certain portrayal of the law and legal actors. This is examined first by considering the context in which these films were made, and second, the depictions of law and legal actors that they offer.

Complexity and uncertainty often animate the desire for regulatory approaches seeking to fix, limit and constrain. But what if, instead of doubling down on ‘solid’ regulation, we also make room for ‘liquid’ regulatory approaches? We interrogate this question through deep empirical analysis of the developing regulatory framework around a form of Melanesian cultural property known as water music. We argue that, although both solid and liquid regulatory forms exist in all normative orders, we have recently seen an increasing emphasis on solid forms of regulation (legislation, registers, etc.) with respect to cultural property. As an effort to consider alternative approaches, we identify a range of liquid regulatory strategies drawing from our case-study. We show how attention to temporality, relationality and situatedness can impact upon the degree of liquidity of individual regulatory approaches, and how they can cumulatively impact the solidity or liquidity of the overall regulatory system. Finally, we identify the different ways in which gendered power and forms of accountability emerge in contexts of solid or liquid regulatory strategies.

It is observed in the Introduction of this special issue that the rule of law has been an integral part of the development of democratic systems of government in national states and features powerfully within contemporary ‘good-governance’ promotion in the Global South by development financial institutions (DFIs). However, the rule of law is predominantly used to emphasise the importance of stability of contract and protection of property in connection with transnational development projects (TDPs) and does not so much focus on the general stability of (e.g. indigenous) rights, access to justice and fairness. Thus, it is important to deviate from a narrow interpretation of the rule of law and include the role of all types of actors in safeguarding this rule of law.

This paper analyses the visualisation of rape and sexual assault in legal and scholarly language. It begins with a critique of the Court of Appeal ruling in R v. Evans (Chedwyn) and its forensic examination of the details of a female rape complainant's consensual sexual activity with other men. The case is analysed in light of a visual metaphor used by Ellison and Munro to describe the removal of popular misconceptions about rape. The paper contextualises that discussion with reference to the idea of the male gaze and its affirmation of a phallocentric cultural and social world in which the objectification of female difference is entrenched. The paper finally challenges that assessment, however, sketching an alternative approach to visual-critical scholarship that embraces interdisciplinarity and a literary sensibility to break (or at least to loosen) the association between the prurient eye of the male voyeur and the criminal justice gaze.

Scholars have long argued that transnational legal indicators (TLIs) suffer from significant validity problems. In response to such critiques, the World Bank (WB) reformed its Doing Business (DB) legal indicators in 2014. This paper evaluates two important results of this reform: the WB distinguished between the quality and performance (efficiency) of law indicators and also claimed that they are positively correlated. I argue that this distinction is based on two different utilitarian perspectives; therefore, these indicators try to quantify different aspects of laws. However, new empirical tests indicate that they are not correlated. The statistical tests on the DB Resolving Insolvency Indicators do not show any strong correlation, and the case of Turkey's WB-led insolvency-law reform suggests that the developing countries can even incur efficiency losses from legal-quality improvements. Thus, this study demonstrates that the 2014 DB reform reproduced the validity problems inside the new distinctions and connections between its indicators, potentially creating new misconceptions for policy-makers.

Prisoners have long been recognised as a disenfranchised group. This paper positions non-religious prisoners as further excluded from pastoral care. While chaplaincies aim to serve prisoners of all faiths and none, this paper suggests a hierarchy of access in which the benefits of chaplaincy are more available to some prisoners than others. Shortcomings in secular care mean that non-religious offenders are often the only group unable to connect with like-minded people and it is argued that they are disadvantaged as a result. The paper also explores the challenges for pastoral carers seeking to support inmates equally. It considers the barriers on both sides of the care relationship, specifically the disincentives to chaplaincy engagement faced by prisoners of no faith and the obstacles encountered by the Non-Religious Pastoral Support Network in accessing service users and delivering care. Finally, recommendations are made to narrow the gaps between religious and non-religious prisoners.

This article proposes a response to legal scholarship’s recent concerns with the complexity of law’s relations with culture, looked at from a sociolegal point of view. It argues that legal studies today must have a comparative dimension, and that they should contribute to an understanding of law in relation to culture, or as a cultural phenomenon. But there are problems with culture as a legal concept (or a social scientific one). Also, many long-established sociolegal ideas about ‘law and society’ are becoming obsolete. A way forward is to relate law to four pure types of community that interact in complex ways in social life and, together, embrace the various dimensions of culture. The article claims that a law-and-community approach to legal study clarifies law’s relation to culture, and provides a framework for comparative studies of law.

The issue of women serving as judges has been a contentious one in Egyptian society for nearly eight decades. While other Muslim majority countries started appointing women judges as early as the 1950s and 1960s, it was not until 2003 that the Egyptian government announced the appointment of its first ever female judge. Despite the approval of Egypt's religious scholars, her appointment was fiercely contested, among both the general public and the legal profession. In this paper we explore the question of why the appointment of women as judges provokes so much controversy in Egyptian society, and in the judiciary in particular. We show that the debate reveals a preoccupation with the proper place of women in society. With both traditionally educated religious scholars and people lacking formal religious training justifying their point of view by resorting to religious argumentation, the debate is also a clear example of the fragmentation of religious authority in Islam.

As the title suggests, Jeffrie G. Murphy's latest anthology of thirteen essays comprises an agglomeration of his thoughts on punishment and forgiveness along with the moral emotions of guilt, remorse, resentment, shame, love and jealousy. All were written and published in law and philosophy journals between 1999 and 2011, with the exception of the final chapter in which he returns to an earlier passion for Kant's moral, political and legal theory in relation to duelling, infanticide, shipwrecks and the right of necessity. Murphy's enduring commitment to the quasi-Kantian ideal of human dignity is articulated by reference to the social significance of a religious framework within which, he claims, it is possible to elucidate an appropriately moral vision of punishment for criminal justice decision-making. Although the investigation of moral emotions is not purported to deliver solutions in the form of a set of precise rules or principles capable of producing specific outcomes, he provides normative direction by an appeal to the core values which comprise the traditional Christian ethic of forgiveness. Because, according to Christianity, we are all created in God's image, there is resemblance between all human beings which means we are able to identify with the sentiments of others.

There is a remarkable resonance between recent findings about medical malpractice litigation and theories about the evolution of co-operation and reciprocity among humans. This should not be altogether surprising: theories of reciprocity seek to explain the behaviours we exhibit when we interact to punish or confer benefits on each other; while civil liability litigation may be just one of modern society’s ways of compelling otherwise unrequited reciprocity. The link between the two fields of study is worth exploring nonetheless. Just as behavioural economics and evolutionary theory offer useful insights for those of us who study legal phenomena, data about the behaviour of people accessing legal institutions may be useful to those who build behavioral theories. This essay is therefore, in a way, a lawyer’s effort to return the favour.

This paper uses the last few decades’ developments in the area of shared parenting to explore power within the framework of autopoietic theory. It traces how, prompted by turbulence from the political subsystem, family law has made several unsuccessful attempts to solve the perceived problem of post-separation dual-household parenting. It agrees with Luhmann and Teubner that closed autopoietic systems’ developments are limited by their normative and cognitive frameworks, and also argues that changes which have occurred in family law show that closed social systems do not function in total isolation. It considers power as ego's ability to limit alter's choices. In our functionally differentiated society, with its recent proliferation of communication, power appears more diffuse and impossible to plot into causal one-way relationships.

Based on an ethnographic study located in Botswana, I move beyond conceptions of the local as physically or territorially grounded to one that examines how it is constituted through links between persons and land derived from life histories extended over several generations. This not only takes account of a specific site in which social relations are bounded and locally constituted but also of how perceptions of locality are discursively and historically constructed. Viewing land as both a tangible and intangible universe constructed through social relationships, I highlight ways in which individuals, as part of a ‘local’ community, find their life courses shaped by wider transnational and global processes, including law, that have an impact on their everyday lives. For some, this provides opportunities for upward mobility and future gains, while others find scope for action severely curtailed. In documenting these uneven, diverse effects of globalisation, what emerges are processes of ‘internalisation’ and ‘relocalisation’ of global conditions, allowing for the emergence of new identities, alliances and struggles for space and power within specific populations. Thus what exists in the here and now as a form of temporality is constantly remade, drawing on the past while fashioning new prospects for the future.