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’.

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.

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.

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.

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.

This paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

the world bank has in place a set of guidelines for assessing the impact of bank-funded projects on indigenous peoples and requires investors to produce detailed reports and ensure for the provision of adequate compensation. the tendency is to preserve sub-saharan indigenous social structures without inquiring whether a particular indigenous group finds itself oppressed within such structures and wants to escape from them. the bank’s compensation policy should strive to remedy social imbalances if that is the wish of indigenous societies.

Mark Tushnet’s paper is an interesting extension of his recent work on how constitutional democracies can control the use of emergency powers. His analysis is useful in drawing attention to the often-overlooked impact of political dynamics in times of emergency. However, Tushnet is too ready to accept that political processes will be able to control the grant and use of emergency powers. He also is too quick to draw a sharp dichotomy between effective political and ineffective legal processes. Political processes can be active and useful in reining in the excesses of emergency powers, but usually only if they play out against the backdrop of a vibrant constitutional culture where the potential for abuse of emergency powers is recognised. The impact of legal and supranational controls plays an important role in shaping this constitutional culture, in particular by ‘dampening’ down the abuse of emergency powers and limiting the scope of action available to the executive. Focusing upon the potential of political means alone to control the application of state power in emergency states of exception is to underestimate the capacity of wider constitutional dynamics to play a key role, even if the political arena may be where the ultimate battles are fought out.

This article seeks to establish law and literature as two distinct yet interacting fields through which the norms of a particular culture are filtered. Drawing on Pierre Bourdieu’s sociological theory, it suggests that legal and literary statements are contextualised by norms and values that exert symbolic violence to the extent that, through communication and knowledge, they define social subjects and their material practices. The specific objective of this article is to map out the network of relationships between the apparently separate fields of the Children and Young Persons Act 1933 and the Criminal Justice Act 1948 and Alan Sillitoe’s The Loneliness of the Long-Distance Runner, and to understand the ways in which law and literature related to symbolic violence as they created, maintained or countered norms which constituted the English culture of juvenile offenders in the 1950s.

This paper seeks to explore the relationship between law and morality and its relevance for establishing the legitimacy of international criminal justice (ICJ) within the context of international trials. At present, imperatives for peace and reconstruction in conflict societies are divorced both conceptually and practically from the process of punishment in international criminal trials. It argues that, in order for international trial justice to move beyond partial forms of retributivism requires a profound re-alignment of the rationales underpinning international penality and a merging of retributive and restorative justice forms. The paper suggests that the resolution of ‘truth’ must go further than this by implicating penal law and process as crucial determinants of ‘legitimate’ strategies for intervention, thereby enabling a wider choice of consequent resolutions. The paper suggests that the intrinsic value of international criminal process lies in its capacity to confront the relativism of ICJ by providing the means to engage with its plurality and so increase its legitimacy for all victims and communities affected by social conflict and war. In so doing it considers how law may be transformed into normative guides to conduct and examines the relationship between the processes of legal reasoning and sentence decision-making in international criminal trials.

This paper intervenes in critical socio-legal/post-colonial scholarship on human rights directed at how religion is constitutive of race and shapes who and what is regarded as ‘human’ and entitled to rights. It focuses on the Indian post-colony and legal persecution of the Tablighi Jamaat, a global, quietest Islamic movement, by the Hindu Right government during the Covid pandemic. It analyses how religion structures race in Hindu nationalist discourse to transform the Muslim into a perpetual outsider and an existential and epistemic threat to the Hindu nation and rights of the Hindu racial majority. The discussion connects to the epistemic anxiety generated by the alternative worldviews presented by this racialised ‘Other’ that shape legal consciousness and rights interventions globally. In complicating how anti-Muslim racism and Islamophobia are integral to the transnational histories of race and race-making, the analysis triggers a rethinking of human rights interventions and the epistemological closures they enact.

The COVID-19 crisis has been accompanied by an extensive use of indicators, such as those related to COVID infections and deaths, but also a good number of COVID policy indicators. This paper discusses these indicators from the perspective of a legal scholar with an interest (and some expertise) in comparative law and empirical legal studies. This means that this paper does not engage in the details concerning epidemiological and medical issues of COVID infections and deaths. Rather, it focuses on two main issues: first, it develops and maps a general causal scheme of indicators and their underlying real-world phenomena in the COVID crisis; second, it shows how such a causal scheme has been, and can be, applied in comparative empirical legal research. Yet, it also notes the difficulties of proving causal relationships and some attempts to overcome them.

This article addresses the significant research gap concerning the regulation of surrogacy intermediaries in China’s rapidly growing surrogacy market. Employing a ‘law in context’ perspective, it explores the question of how to effectively regulate surrogacy intermediaries in the Chinese context. Situated within China’s unique socio-cultural landscape, where procreation carries profound significance, the study navigates the complexities of surrogacy regulation, including ethical dilemmas, rights infringements and regulatory ambiguities. The article advocates for the regulation of surrogacy in China to prevent possible exploitation, referencing three international models: prohibiting commercial surrogacy, governing non-profit surrogacy organisations and imposing duties on for-profit surrogacy agents. The aim is to construct a robust, context-sensitive regulatory framework for surrogacy in China, focusing on identifying suitable intermediaries and defining the scope of effective regulatory oversight.

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).

This comment responds to a central issue posed by Professor Tushnet as to the way in which democracies control the exercise of emergency powers. Sands believes that ‘law’ and ‘politics’ are not mutually exclusive, and that the relationship between them suggests that a general theory on the interplay of political and legal factors in controlling the exercise of emergency powers remains elusive.

We are sympathetic to the research aims of the two books examined by this symposium and their desire to understand law's role in generating and contesting social injustice. We are also intrigued by the proposal in the Introduction to this symposium, notably to expand the normative reach of the rule-of-law ideal to private actors, in order to transform it into an ally of counter-hegemonic action. In our research, we share a similar research focus (development projects), methodology (case-studies) and concerns (harmful effects of development interventions) with the authors of the two books. Accordingly, in this contribution, we want to think together with the editors of the symposium – by examining the case-study of the Hidroituango project in Colombia (hereinafter, ‘Hidroituango’) – whether the rule of law can indeed be reimagined to limit the arbitrary exercise of power by private actors, and what benefits this might create for dealing with social injustice. However, since neither Bhatt nor Lander advances an explicit account of rule of law in their books, our critique in this piece is addressed not at them, but rather at the theorists and advocates of rule of law as a political ideal.

Should the law support union recognition by employers? If so, what form should this legal support take? These are the questions that Alan Bogg addresses in his excellent monograph, The Democratic Aspects of Trade Union Recognition. His focus is New Labour's 1999 statutory recognition procedure for trade unions, which he situates within the historical context of the United Kingdom's distinctive approach to the relationship between labour law and the social practice of collective bargaining – aptly (and famously) named collective laissez-faire by Otto Kahn-Freund (1972). Combining political philosophy and legal analysis, Bogg argues for robust legal support for trade union recognition that preserves the autonomy of trade unions to determine their own constituency and recognises their distinctive power to strike. Inspired by the idea of deliberative democracy and an ethical commitment to freedom as non-domination, he argues that civic republicanism provides the best normative basis for trade union recognition procedures. He contrasts this normative framework with the rights-based individualism and state neutrality characteristic of the liberal approach, which, he argues, is embodied in the United States and Canadian versions of industrial pluralism. Bogg also demonstrates the ‘yawning chasm between New Labour's civic rhetoric and New Labour's liberal legal reform agenda’ (pp. 118–19) when it comes to trade union recognition procedures. He concludes by offering a series of proposals that would enhance union recognition and further the values of freedom as non-domination, democratic participation through deliberative democracy, and community.