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.

Lord Kames (Henry Home) (1696–1782) was a well-known jurist, philosopher and judge in the Scottish Enlightenment, whose writings on aesthetics and literary criticism, especially, were very significant in the eighteenth century and later, not only in Britain and the United States, but also in France and Germany. His works on law and legal history were important mainly during his lifetime, but at least one aspect of his legal writings deserves special attention today: his concept of property, which he never stated as one comprehensive theory. Nevertheless, it pervades most of his work. This article seeks to extract and piece together, from a number of his legal and non-legal works, the elements of this quite original property theory which comprises legal-doctrinal, philosophical-theoretical, historical, sociological and psychological, aesthetic-moral and economic aspects. Together these elements can be restated as a surprisingly coherent property system, which may enrich discussions in modern property theory.

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.

This article explores the cultural and legal contexts in which the construction of childhood sexual abuse has taken place over the past three decades in the United States. It also explores a theoretical debate that pits ‘logico-scientific’ accounts of reality against narrative accounts of reality. This debate is of central importance to the study of social and legal responses to childhood sexual abuse, which is categorised in this article as a problem of sexual and domestic violence from a feminist perspective. Some feminists argue that narratives may serve an empowering function in legal and other institutions by giving voice and legitimacy to survivors of sexual and domestic violence. Other feminists argue that narratives of domestic and sexual abuse that fail to identify the social systems of inequality associated with abuse may produce hyper-individualistic and depoliticising accounts of these problems. In this article, the author argues, with Ewick and Silbey, that it is possible to specify the kinds of narratives that contribute to political discourse and confrontation surrounding issues of childhood sexual abuse. The strategic use of social science and expert testimony in criminal and civil court cases, the construction and cultural significance of autobiographical narratives, and the proliferation of narratives in popular media that deal with child sexual abuse are all discussed. It is argued that autobiographical accounts of child sexual abuse, such as those of Dorothy Allison and Maya Angelou, internally illuminate the contexts of inequality which perpetuate abuse and shape the lives of survivors, while discourses in legal institutions and popular media tend to reproduce hegemonic constructions of women, children, and the problem of childhood sexual abuse.

This paper elaborates what the author considers to be a promising alternative to the orthodox ‘conflict model’ of pregnancy: a model of adjudication based on an understanding of pregnancy as a property relationship. The conflict model, which purports to balance the rights and interests of the pregnant woman against those of the foetus, is now widely acknowledged to be unsatisfactory. This paper argues for the complete abandonment of the conflict model in all its guises, and the adoption of a new ‘property model’ of pregnancy. The property model, it is argued, has several distinct advantages over traditional or orthodox ways of debating and adjudicating pregnancy: it explains and justifies features which currently appear as inconsistencies or contradictions in the current law, and provides possible solutions to contested issues such as surrogacy, the ‘rights’ of fathers in decision-making about pregnancy, and the role of the state in setting limits on abortion.

The Idea of Justice is one of those books that – whether we agree with its ultimate conclusions or not – will be virtually impossible to ignore. And for good reason: it takes on one of the great political philosophers of our time, John Rawls, and deepens, enriches and challenges some basic Rawlsian ideas. Sen's basic argument is that the Rawlsian approach to justice, which has profoundly influenced the development of contemporary political theory since the publication of A Theory of Justice in 1971, is so focused on ideal, transcendentally just institutions that it is unable to offer practical guidance for advancing justice in an increasingly borderless world. Sen's ambitious critique of Rawls takes him on a winding but engaging path, through political and moral philosophy, economics, history and law. Along the way, he challenges mainstream economic theories of rationality, explores deontological and consequentialist ethics through the lens of classical Indian thought, articulates and defends an understanding of freedom in terms of capability, and rethinks the relationship between development, agency and democracy in a global context.

In this paper, we begin reflecting on how ‘futures literacy’ – recently championed by UNESCO as a vital skill that allows people to better understand the role of the future in what they see and do – might be developed in environmental law pedagogy. Law and legal analysis tend to be absent from futures scholarship and we discuss various ways of engaging with environmental law as an important but underexplored site and means of future-making. We consider our shared teaching of an undergraduate module in which students examine historical legislation for what it says about past ideas of the environment's future and the action within the law necessary to safeguard it; and contemporary texts, including science fiction and poetry, imagining a future for the environment on and through which law operates. Futures literacy, we argue, is at its richest when ‘historical futures’ and ‘future futures’ are read together, or alongside one another.

The problem of women's access to self-defence has been internationally recognised. This paper presents original empirical data on women's use of self-defence in practice alongside critical feminist analysis of the requirements of self-defence under Scots law. The empirical findings confirm that women are rarely successful with self-defence at trial level and the doctrinal analysis further demonstrates that self-defence does not adequately reflect women's experience of violence, especially sexual violence, and instead continues to reflect male experiences of (public) violence. It is intended that this research will form part of a larger developing evidence base, the type of which has been called for (Fitz-Gibbon and Vannier, 2017) and can be used to support reform in this area. As such, it represents a significant contribution to socio-legal work that has considered the issue of women's access to criminal defences.

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.

Despite international and national human rights norms and standards, gender equality remains a goal in most countries. The recent discourse on substantive equality as a strategy for addressing the gender discrimination, disadvantage and deep-rooted social biases has reinforced the importance of working towards indivisible human rights for girls and women under CRC and CEDAW. This paper uses international and comparative national experiences on law and policy to argue that the failure to adopt an indivisibility of rights approach in relation to girl children has made it more difficult to achieve a norm of substantive equality for women. It is argued that the adoption of an intergenerational and rights-based, rather than a social welfare approach, is a necessary step to achieving substantive equality for women.

For some time now, there has been a perceived need to prepare law students to handle legal issues beyond national borders. Much has been written on how globalisation should shape legal education, but no clear direction has emerged. There is also a contrary impulse to retain a focus on domestic law in order to prepare students for practice in their home jurisdiction. One way of addressing these apparently contrary impulses is to take a skills approach that articulates the analytical processes distinctively active in a more global context. Some of these skills could then be integrated into a variety of courses. However, skills in the global context should not merely replicate domestic conceptions of skills. This paper proposes that students develop abilities in comparative thinking and heuristic question framing, and reviews the advantages and disadvantages of a course in Comparative Advocacy designed to accomplish these goals.

Fears that new scientific advances on the mind and the brain which establish that behaviour is determined by causes in one’s mind/brain and/or various past and present internal and external environments will undermine the attribution of legal responsibility are misplaced. Taking responsibility to inhere where conduct reflects upon an individual and where, properly understood, the individual could have done otherwise, determinism, operating in the right sort of way, should be embraced as a condition for responsibility.

This paper argues that law and society are disconnected in practice, and that this is attributable, in part, to law’s disconnection from the arts and humanities in our schemes of formal education. When we draw out the legal yarn from its cultural fabric, we find that it is remarkably thin. It is especially inadequate to describe the complexity of human interconnection, and even lacks a language to express such commonplace connections as unmarried romantic cohabitation and non-profit clubs. To understand human interconnection and the law’s connection to society, we must read the law ‘in context’ – as being one fabric, one textile, with other literatures – and we must read with an appropriate ethic. To that end, this paper reads the law in the context of Dickens’s Bleak House, which has been called ‘a novel of connections’, and Forster’s Howards End, which exhorts us to ‘connect the prose and the passion’.

This article explores narrative devices in legal rhetoric, and the use of these devices for asserting the authority to distinguish lawful from unlawful inflictions of bodily harm. The argument made here is that the moral language adopted by judges in criminal appeal judgments on risky sexual and/or violent consensual acts embraces a set of interconnecting narratives otherwise observed in literature, and relating to gender, sexuality and race. I try to show how the reading of these legal cases is enriched by identifying these narratives, locating them as rhetorical strategies and reflecting on their uses in judicial decision-making. In particular, I argue that in the case-law explored here, these interconnected narratives are deployed in order to assert law's dominance over an imagined ‘savage’ other. Through this ongoing repudiation of savagery the distinctions between normative and non-normative, violent and non-violent, lawful and unlawful are constructed.

The legal requirements of transracial adoption of children in England changed in 2014. An amendment to the law removed a requirement that due consideration be given to the ‘child's religious persuasion, racial origin and ethnic and linguistic background’. This change was motivated by the belief that to do so would increase the number of transracial adoptions and thus decrease the number of children in care awaiting adoption. The likelihood of this change being successful is examined through a combination of critical race theory and systems theory. The combination of these theories permits an investigation into the communications between the political, legal and child welfare systems. This paper offers an enriched evaluation of the interactions of the child welfare, legal and political systems that should be of use to those who work in those systems, as well as providing a basis for understanding why this legal amendment will not achieve its objectives.

This paper builds on ethnographic fieldwork in Belgian welfare administrations to identify daily practices of resistance among Belgian ‘welfare bureaucrats’ who interrogate the new welfare and immigration law reforms that further restrict migrants’ access to social assistance. The contestation strategies are used to circumvent and sometimes break the formal and informal policy guidelines while still allowing them to perform and remain loyal to the state and to higher principles such as a commitment to the fundamental right to human dignity. Three main contestation strategies are identified: failing to provide certain services to demonstrate the absurdity of certain guidelines, writing reports against the administration and in favour of the user, and encouraging litigation against the federal agencies that employ them. These strategies show Belgian welfare workers’ commitment to providing a form of public service that aligns with their professional ethos rather than enforcing specific government policies.

Intermediaries are communication experts who facilitate communication between individuals with communication needs and the criminal justice system. In executing the role, intermediaries interact with police, lawyers, judges and other criminal justice professionals. But is the intermediary a professional in its own right? This article argues that a more useful question to ask is whether intermediaries engage in what Andrew Abbott terms ‘professional work’. It reveals how the role tussles for legitimate control over its work tasks through the staking of ‘jurisdictional claims’. Intermediaries do so through the performance of ‘boundary work’ which involves the construction and negotiating of boundaries that mediate interaction. This article presents findings from thirty-one in-depth, semi-structured interviews with intermediaries and judges in England and Wales and Northern Ireland. It concludes that the future of the intermediary role and its work depends largely on the type of ‘jurisdictional settlement’ which its practitioners seek to carve out.

This paper examines the presence of lonely, isolated and impoverished older citizens in Japan's prison population, many of whom have turned to petty crime only recently and arguably lack a genuine need for corrective services. The paper offers empirical evidence drawn from a mixed-methods study that appears to confirm their compliant, ‘law-abiding’ attributes. It argues that their influx into prisons can be seen, at least in part, as citizens who are already socially excluded and stigmatised leveraging law to assert an additional risk-laden and stigmatised identity, which provides protection. The outcome is the subversion of prisons as de facto aged-care communities. This analysis resonates with an emerging body of literature that Chua and Engel (2018; 2019) have described as the ‘Identity’ school of legal-consciousness scholarship. This literature centres on empirical studies of marginalised cohorts who leverage legal structures to embrace an identity that complicates their stigma while providing desired protections.

The three books reviewed here all address the question of the efficacy of international law and advance concerns about its future trajectory, albeit in contrasting ways. As has been well documented, the role of international law – specifically in the regulation of the use of force – has undergone significant scrutiny in the post-Cold War era. To a much greater extent than during the Cold War, contemporary conflicts and crises are invariably discussed with reference to international law, and the legality of a particular use of force has become a significant factor in assessing its legitimacy; one need only think of the importance placed on the legality of the 2003 invasion of Iraq. This increase in prominence suggests that international law has become more important, and unsurprisingly those used to the discipline's previous role as exotic curio have welcomed this sudden promotion (Robertson, 2000).