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.

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.

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.

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.

This study considers how invisibility under the law can lead to stigmatisation. It examines how legal silence affects the stigmatisation process and the identity of male sex workers in Japan. Since male sex work is currently not recognised under Japanese law, male sex workers are not subject to control, regulation, punishment or protection. However, the number of male sex workers in Japan is increasing. Many studies have noted that male sex workers may experience double stigmatisation – referring to the stigma associated with homosexuality and the stigma associated with commercial sex. Male sex workers in Japan, however, may face an additional stigma caused by the fact that the law essentially ignores their existence. This paper draws on fieldwork interviews to show how the silence of the law can exacerbate the marginalisation and disempowerment of a vulnerable social group.

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.

This paper compares two judgments of constitutional courts (French and German) assessing the constitutionality of statutes concerning veil-wearing and focuses on the underlying conceptions of ‘living together’. This means that what is actually compared is the self-understanding of the respective majority in the two societies as stated in the decisions. This is done by disassembling the concept of ‘living together’ into three elements: the notion of the individual, the meaning of belonging to the national community and the space accorded to religion in public. Each section of this paper examines one of these elements as they are entailed in the judgments and positions them critically within the respective legal cultural and historical contexts. The main aim of this paper is methodological in nature and is namely to show how comparative legal cultural studies can avoid essentialisation and rather highlight the complexity of every cultural context.

This paper sets out the work of Parfit, in terms of Hume and Locke, in terms of the treatment of the person. It considers how ontological status is often a chimerical notion. It sets out the non-bindingness of promises thesis and develops this in terms of intentional action to show how intentional action itself may be impossible. The paper also raises questions about how we define groups, such as criminal groups, in terms of intentionality.

World War II genocide in Germany, the Rwanda genocide in the early 1990s and the Darfur genocide today are visceral reminders of the devastation and senselessness in the breakdown of human order, a poignant but sad insight into the nature of man and politics. Yet the international community, and by extension the United Nations (UN), have shown a remarkable reluctance to address rape and other forms of gender violence perpetrated during militarised conflicts. Given the psychological toll and devastating effect of rape and the growing number of conflicts, this effort does not speak well to the UN’s commitment to problems that destabilise international peace. It does however raise concerns in the minds of those who see the UN as cherrypicking which conflicts to address while sidestepping others until it is too late. With a view to the Allies’ response to genocide during World War II, this article argues that the realist analytical framework of world politics provides the most plausible basis for explaining variations in international response in militarised conflicts such as Rwanda and Darfur. We present testable hypotheses to conclude that while rape in itself may not be the sole trigger for interventions, states with unstable regimes or sovereign capacity whose government has been deposed are more likely to be the object for interventions or held accountable than those with otherwise stable governments who benefit from the support of a hegemonic power. To victims of crimes of rape caught in militarised conflicts, and to whom justice may come only after a perpetrator regime has been deposed, the conclusion that the decision to intervene is predicated more on political might than justice is disquieting.

This paper offers a revisionist history of the banning of photography in English and Welsh courts in 1925 and explores the contention that a complete rationale for the ban has never been adequately articulated. While existing accounts of the ban have placed emphasis on the outrage caused by press coverage of a handful of sensational murder trials, this paper offers the first comprehensive analysis of photographs of trial scenes in the decades leading up to the ban. In doing so, it argues that the exposure of the legal system to scrutiny by the press and public, made possible by new technologies and reporting practices, was much more pervasive than has previously been suggested. It also contends that, although parliamentarians claimed that the purpose of the ban was to protect vulnerable members of the public, it actually did a much better job of preserving the interests of the legal, political and social elite, including judges, against a backdrop of fears about an increasingly disrespectful populace. More particularly, it is suggested that the ban allowed the state to take back its monopoly over the production, management and consumption of images of judges and other key actors in the courtroom in an effort to re-impose social order and retain the mystery of law.

Muslim divorce practice is a feminist issue, insofar as it often departs from core principles of Anglo-American divorce law. When legal feminists have examined the reception of Muslim divorce practice in common-law courts, they have tended to measure those departures in terms of financial outcome. There is a danger that, in consequence, our theory of Muslim women's legal agency is reduced to pragmatic matters of choice, money and advantage-taking. That theory seems hugely impoverished when read against the political background in Britain, where Muslims‘ legal agency upon divorce is bound up with deeper questions of belonging and allegiance. Feminist work ought to be able to advance a theory of citizens’ commitment to civil law in litigation which can give a complex account even of the unsettling litigation of Muslim divorce disputes in civil courts. This article draws on existing work in feminist multiculturalism to sketch the beginnings of that theory.

The theme of the book symposium ‘The Rule of Law in Transnational Development Projects’ is, as Bhatt's Concessionaires, Financiers and Communities (2020) and Lander's Transnational Law and State Transformation (2020) highlight, ripe for critical reflection. The two books reveal the power wielded by private for-profit actors in the co-constitution of legal norms, often at the expense of local communities in development-investment settings. The co-constitution of legal norms by private actors via ‘contracts’, ‘policies’ and ‘intermediaries’ (Bhatt, Lander and Taekema, Book Symposium Introduction in this issue) development permeates rule of law in the public sphere, including in ways that affect the application of domestic and international legal norms relating to human rights. Of course, rule of law may be defined by ‘thick’ conceptions … as a just system of laws ‘consistent with international human rights norms and standards’ (UN Secretary General, 2004, para. 6) or ‘thin’ conceptions with more formalistic requirements that do not prescribe political or social values. Deontological questions aside, even in its ‘thinnest’ conception, rule of law means that legal norms ‘should be publicly promulgated; be predictable in their application; apply to all citizens, including government officials; and be subject to some form of neutral adjudication in the event of disputes as to their interpretation or application’ (Trebilcock, 2011, p. 209). Yet, rule of law has often been applied ‘to favour entrenched elites over resistance groups, vested interests … over civil disobedience, official actors over unofficial actors and property owners over protestors’ (Simpson, 2012, p. 9).

Since the spark of the Egyptian revolution in January 2011, issues of political party law reform, constitutional declarations, and the institution of free and fair elections have taken the lead in mainstream politics, and at times, relegated the role of organised labour to mere economistic agitation and disruption of an already ‘disrupted’ life, in the eyes of the Egyptian public. In contrast to mainstream depiction of the labour movement as a ‘single issue’ movement, this paper shows the decisive political role of labour struggles that took place both inside and outside the judicial and legal systems, in the years leading up to the events of 25 January. This paper identifies the diversity of tactics used by the labour movement, and its unique approach to legality – a defensive legality approach, where legality and illegality are both taken seriously as legitimate tactics of resistance. The defensive legality approach recognises the violence and coerciveness of the legal form, as well as the tactical potential of recourse to the legal system to defend the labour movement. The experience of Egyptian workers in the wake of the 25 January revolution reveals the politics and the limits of law, as well as the significance of tactically and defensively using the law.