In recent years, universal principles and, in turn, the universalistic discourse of human rights, have fallen under critical review by feminist scholars. This is part of a more general suspicion of a search for universalism and abstraction in law: feminist legal scholars have highlighted and critiqued the gendered dimension of such an approach.1 Particular concepts fundamental to political, legal and social theory such as justice,2 equality,3 freedom4 and rights5 have been under the spotlight to see if their structure leads to detrimental consequences for women. Criticisms of rights have taken a variety of forms with rights being seen as too individualistic, reinforcing existing power imbalances, failing to account for women’s experiences and focusing too much on the public sphere.

In Orientalism, Edward Said’s seminal critique of Western discourse on the Arab and Islamic world, Said begins with an epigram from Karl Marx: ’They cannot represent themselves; they must be represented‘ (Said, 1979, p. xiii, quoting Karl Marx, The Eighteenth Brumaire of Louis Bonaparte). Said then argues that Marx’s statement captures a basic reality about Western representations of ’Oriental‘ societies, which is that they often rest on a pattern of cultural hegemony. The dominance of European colonial powers, primarily Great Britain and France, over their subjugated populations is what allowed the latter to be depicted in a way that reinforced ‘the idea of European [superiority] in comparison with. . .non-European peoples and cultures’ (p. 7). For example, in Gustave Flaubert’s popular novels, ‘Flaubert’s encounter with an Egyptian courtesan produced a. . .model of the Oriental woman. . .[who] never spoke of herself. . .[and] never represented her emotions, presence or history. He spoke for and represented her. . .telling his readers in what way she was typically Oriental’ (p. 6, emphasis original). Moreover, Flaubert’s superiority in relation to her ‘was not an isolated instance. It fairly stands for the pattern of relative strength between East and West, and the discourse about the Orient that it enabled’ (p. 6).

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.

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.

In the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be applied to the former); and (3) what should we make of preventive measures that rely not so much on rules and orders, but on ‘technological management’ (where the preventive strategy is focused on eliminating practical options)? Responding to the first question, a Gewirthian-inspired theory of punishment is sketched – a theory that is, broadly speaking, supportive of liberal values and respect for human rights. What makes this theory apodictic for any human agent is that it demands respect for the very conditions on which any articulation of agency is predicated. With regard to the second question, we indicate how a Gewirthian view of the relationship between punitive and preventive justice supports the logic of referring to the principles that guide the former as a benchmark for the latter; and we suggest some particular principles of preventive justice where the restrictions are targeted at individual agents (whether in their own right or as members of classes). Finally, we suggest that, although technological management of crime changes the complexion of the regulatory environment in ways that might be a challenge to a Gewirthian moral community, it should not be categorically rejected. Crucially, technological management, like other preventive strategies, needs to be integrated into the community's moral narrative and authorised only to the extent that it is compatible with the governing moral principles.

When mediation places decision-making power in the hands of lay disputants it raises troubling issues. Can justice be delivered without judicial assistance? What is the effect on the legal system? And how should outcomes thus achieved be regarded? Critics have tended to answer negatively, pointing to a range of harms including individual oppression and the vanishing trial. Such views, focusing too narrowly on conformity to legal norms, overlook ordinary people's capacity for justice reasoning. A recent Scottish pilot study of small-claims mediation parties illustrates the richness and complexity of their thinking around whether, and for how much, to settle. This suggests that mediation settlements, rather than representing second-class justice, may enhance the legitimacy of the legal system. Implications for theories of justice are considered.

The English homelessness scheme has been lauded as being one of the most progressive in the world for offering an individually legally enforceable right to housing to those people who meet the statutory criteria. Its definition of homelessness is also liberal by comparison with many other countries within Europe and beyond, extending significantly beyond the stereotypical rooflessness experienced by rough sleepers. Nevertheless, the scheme is highly selective and targeted, and assesses homelessness through a test of relative need, rather than enshrining a minimally acceptable standard of housing. It thereby creates a category of the marginally housed whose housing needs are assessed as insufficiently poor to be officially categorised as homeless, yet who are living in severely inadequate housing. To reduce the uncertainty and contingency of the current test, the paper proposes the adoption of a new test of habitability.

Legalised accountability – the definition of torture as an illicit behaviour and the mobilisation of law-enforcement agencies, prosecutorial offices and courts to gather evidence, prosecute and convict torture perpetrators – has become central to anti-torture policies around the world, including Brazil. Based on legal-consciousness scholarship and in-depth interviews, this paper investigates the place and meaning of law in the everyday lives of Brazilian anti-torture activists. Counter-intuitive as it may sound, interviewees articulated an account in which law's authority is largely rejected, while non-legal tools against torture look much more preferable – even if they residually and cynically engage with the law. While exploring the discursive roots of such account, this paper highlights the role of law and justice institutions, particularly those in the criminal justice system, in the of building social support for – or rejection of – the law. These findings add to our knowledge of law's hegemony, while providing valuable insights for future legal-consciousness studies.

This paper examines the key societal developments underpinning the growth of mediation in Singapore with a view to analysing the evolving conceptualisation of justice within mediation. The introduction of mediation corresponded with a shift from adversarial justice to an indigenous form of conciliatory justice, in which a respected mediator played an adviser role for the disputants and was trusted to ensure the fairness of the process. However, this trajectory was tempered by the need to ensure that Singapore mediation practice conformed with international practices concerning the protection of parties’ autonomy. The ambivalence concerning the mediator's role has resulted in uncertainty about whether the mediator bears primary responsibility for ensuring procedural and substantive fairness. The paper discusses the implications of this ambiguity and proposes ways to resolve it. The current phase of professionalisation in Singapore's mediation movement offers the opportune moment to resolve these existing tensions and to crystallise the mediator's role in facilitating access to justice.

In this article I draw on the South African legal context to critique the argument that same-sex marriage would provide ‘equal recognition’ for same-sex relationships. I highlight the ways in which, despite strong equality provisions in the South African Constitution and an apparent commitment to substantive rather than merely formal equality, both customary marriage and same-sex marriage continue to be subordinate to heterosexual civil marriage. I then broaden my analysis to consider the extent to which this would also be the case in other jurisdictions, particularly the UK. Drawing on the Butler/Fraser debate on recognition and redistribution, I argue that there is a connection between misrecognition and material disadvantage that goes unacknowledged in ‘symbolic recognition’ claims for same-sex marriage. The critiques of ‘marriage equality’ should sound a warning not only to same-sex marriage advocates but also more generally to those who would seek ‘equal recognition’ through law reform.

Health-care law presents numerous challenges to the conception of the law as a dispassionate arbiter of disputes or protector of rights. Issues relating to end-of-life care, the assessment of mental capacity and decision-making for those who lack capacity, amongst others, epitomise the complex nature of health-care law. They also raise globally applicable questions about discrimination, or equal protection, as well as concerns for relief of suffering, the assessment of best interests and the exercise of individual autonomy. This paper will evaluate the extent to which law's traditional objectivity (dispassion) is undermined by the introduction of concerns about compassion into judicial and executive decisions. Focusing primarily on the law in England and Wales, but with reference to multi-jurisdictional case-law and international instruments, it will consider whether the law provides compassionate approaches and outcomes in end-of-life decision-making, and the implications of compassion for legal certainty.

We deploy a novel and radical approach to vulnerability theory to investigate Scotland's response to asylum seekers’ vulnerability during the COVID-19 pandemic and test Scotland's self-affirmation as a hospitable country. Our ethical vulnerability analysis enhances Fineman's vulnerability analysis by denationalising the vulnerable subject and locating her within our ‘uneven globalised world’. We further enrich this fuller version of vulnerability analysis with insights from Levinas's and Derrida's radical vulnerability theory and ethics of hospitality. We demonstrate how our ethical vulnerability analysis enables us to subvert the hostile premise of migration laws and policies, and thus fundamentally redefine relationships between guests and hosts so that the host is compelled to respond to the Other's vulnerability. We argue that this hospitable impulse yields a generous and absolute commitment to progressive social welfare provision for asylum seekers, which brings Scotland closer to fulfilling its aspirations to be a hospitable host by welcoming the Other.

Plants have been and will continue to be fundamental to the evolution of human society. However, the law’s traditional approach to plants, based broadly on the need to facilitate the exploitation of plants for the benefit of humans and to regulate the impacts of that exploitation, fails to recognise the ways in which plants can be said to participate in society. This participation takes three forms: a contribution to the achievement of social goals, the shaping of social spaces and the influencing of individual and collective human behaviours. It is argued that the recognition of these roles that plants play in society in law and policy could begin to redress the continuing decline in plant diversity, and lead to a reformed understanding of society’s relationship with plants and the wider natural world.

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.

The EU has progressively introduced antidiscrimination enforcement measures like the duty to set up Equality Bodies (EBs) that applies to the ground of racial or ethnic origin, among others. Until recently, however, EU law only envisaged vague standards for EBs that allowed a wide range of national configurations. Building on international benchmarks, this paper draws a set of dimensions considered necessary to improve promotion-type EBs responsiveness to discrimination. These dimensions are applied to the British and Spanish EBs to illustrate how the gaps left by EU law may lead to the design of ineffective bodies. The paper argues that EBs can contribute to effectively tackling discrimination if they are designed to be responsive at individual and systemic levels. The 2018 EU Recommendation on Standards for EBs makes a step forward in that direction, but its practical relevance may be limited by its non-binding nature.

People with cognitive disabilities face specific forms of discrimination and disadvantage in the criminal justice system, including in legal proceedings. While unfitness-to-stand-trial provisions are intended to assist in avoiding unfair trials, in application, such laws can exacerbate disadvantage. A recent research project sought to increase the participation of accused persons with cognitive disabilities in legal proceedings by developing, implementing and evaluating a model in which disability support workers were embedded in legal services in three Australian jurisdictions. This paper details the findings of a cost–benefit analysis undertaken of that model compared with the common outcomes for accused persons with cognitive disability, including a finding of unfitness to stand trial. The analysis provides evidence of how a tailored programme intervention at a critical point can provide savings in police, courts and custody costs in addition to improving the timeliness and quality of outcomes for people with cognitive disabilities.

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.

Since 1978, we have observed the steady development of institutions, mechanisms and processes of dispute resolution in China. In the last ten years or so, we then noted frequent issuance of new rules and measures as well as revision of existing laws, the promotion of mediation as the preferred method for resolving disputes and, more recently, the promotion of an integrated dispute-resolution system as a national strategy for comprehensive social control (as well as for resolving disputes), in the name of reforming and strengthening ‘the Mechanism for Pluralist Dispute Resolution’. Careful examination of these latest developments suggests that fundamental changes are taking place that may potentially alter the course of the development of the Chinese dispute-resolution system. These developments are the focus of this paper with an aim to ascertain the nature of the developments and their future direction or directions.

This paper aims to conduct a descriptive analysis of a total of 2,172 semi-structured interviews with sentenced inmates in Mexico City during 2002–2008 in order to explain how public legal defence works, how this service is evaluated by the inmates who took part in the interviews, and how the traditional division between public and private services constitutes an important distinction in the way in which criminals interact with, and are processed by, the legal system. Our findings suggest that, in the case of Mexico City: (i) to be tried by a public defender not only implies that the person accused holds a bigger chance of getting a softer sentence than those defended by private lawyers; but also, (ii) that the population will have a better perception of the justice process.

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.