The recognition of individual identity as multilayered and circumstance based leads to a shift from a theory of general rights to a theory of specific rights connected to structural social change. General rights, such as the right to health and the right to work, must be interpreted according to the circumstance of differently situated women, so that rights are specific enough to ensure that they are actually enforced for different groups, including groups that, due to discrimination, are made invisible to the law. In this sense, the different circumstances that help develop the identity of women, Black women or poor Black women in Brazil will be studied to give specific content to general rights recognised by Brazilian law and by International human rights law.

I want to thank Roger Cotterrell for his stimulating lecture, and thank especially Carrie Menkel-Meadow and the International Journal of Law in Context for the opportunity to participate in this important conversation. I admire Professor Cotterrell’s choice of topic; he has taken up a really hard and pressing question for many pluralist societies right now, which is how law and legal theory might make sense of the legal demands of cultural pluralism. Kwame Anthony Appiah has nicely articulated a similar version of this problem: ‘The challenge, then, is to take minds and hearts formed over the long millennia of living in local troops and equip them with ideas and institutions that will allow us to live together as the global tribe we have become’ (Appiah, 2006, p. xiii). Even if you do not share Appiah’s exuberant cosmopolitanism, the issue remains that conflict between human groups based on small differences often unrecognisable to outsiders is probably the norm in human history, and each society (however defined) continues to negotiate that problem of boundaries, membership and codes of conduct, of who can be included and whose practices can and cannot be tolerated.

Since the late nineteenth century, ideas about law, both Albanian and ‘other’, have played significant parts in the development of a sense of ‘Albanian-ness’ and remain central to the ongoing construction of the nation. In this paper, I examine how comparative thinking about ‘Albanian law’ in northern Albania and predominantly Albanian Kosovo has contributed to nation-building aims, with particular reference to comparative thinking around the Kanun of Lekë Dukagjin, an early-twentieth-century legal code rooted in northern-Albanian customary practices. I look at this from two perspectives: comparative thinking by the law-writer in the Kanun and comparative thinking by a contemporaneous writer about the Kanun. Through these perspectives, we gain a more nuanced understanding of the intellectual context of the Kanun’s production than is reflected in the existing literature, and a glimpse of its continued relevance today to ideas of nation.

Legal theory must not merely describe our world; it must also assist us acting in it. In this paper, I argue that teaching legal theory should show law students how to do things with legal theory. My pedagogical approach is contextual and historical. Students learn how to use theory by seeing how past jurists acted in their particular worlds by changing dominant concepts of law. Most introductory legal theory courses are organised by what I will call the usual story of jurisprudence. In this story, great thinkers in rival schools of legal thought attempt to answer perennial questions about the nature of (the concept of) law. In this story, the thick context of our world recedes beyond the horizon of theory. I argue that critical genealogy can let us critique this usual story and its unspoken assumptions of morality, politics and history. Amia Srinivasan's account of ‘worldmaking’ is especially compelling in its emphasis on critical genealogies’ capacity to transform our representational practices (and thus open up new possibilities for action). Critical genealogy also has certain pedagogical ‘uses and advantages’ for teaching legal theory in law schools. Here, context is method. The teacher must defend their political choices of context – choices that are naturalised and so beyond critique in the usual story of jurisprudence. By making these choices explicit, students are invited to both challenge the teacher's choices of context and critique their own common law education. This pedagogical approach also encourages students to experiment in ‘worldmaking’ themselves, and so cultivate a creative capacity to use legal theory to change the world through transforming their representations of it.

States’ bordering practices force individuals to undertake dangerous migratory journeys and put them at risk of severe human rights violations. Yet, irregular arrivals who are found not to be at risk of serious harm in their countries of origin are perceived as voluntary migrants and are therefore assumed not to be in need of protection. This article employs the concept of vulnerability to challenge the idea that both the initial and subsequent dangerous migratory journeys are undertaken voluntarily. Based on an analysis of trafficking-based asylum claims from the UK and Germany, the article shows that both re-trafficking and irregular re-migration result from vulnerabilities which converge to preclude reintegration in the country of origin and access to livelihood options. While some of these vulnerabilities are likely to be present at the time of the initial dangerous journey already, the article pays particular attention to ‘consequential vulnerabilities’ brought about by previous migration experiences. It then introduces the concept of ‘route causes’ of irregular re-migration to describe factors which heighten the risk of re-migrating irregularly and therefore establish a risk on return related to harm experienced during irregular migration, rather than in the country of origin. Thus, the article shows that the vulnerability concept informs the future risk analysis in refugee law and argues that, just like a risk of re-trafficking, a risk of irregular re-migration could form the basis of an asylum claim.

The 1987 film RoboCop is not just a science fiction action story; it is also a critique of the neoliberal resurgence in law and politics at the end of the twentieth century. In particular it critiques the privatisation of police services, and the expansion of private property claims to cover a cyborg policeman, notwithstanding its human components. I connect the critique in the film with the broader academic literature dealing with the privatisation of police forces and the expansion of private property claims, particularly copyright and patents. Finally, I consider whether, as a result of the neoliberal expansion of private property rights over the last few decades, the law could now justify a private property claim over a cyborg like the one in the film.

Introducing our Special Issue on marginalisation, this paper considers some of the challenges that this topic poses for legal scholars. The paper identifies that these challenges arise principally from the ambivalence of ‘marginalisation’ itself: at once an idea so broad that it arguably underpins the bulk of legal research (and socio-legal research in particular), but at the same time an idea that in practice too often quickly gives way to various other neighbouring ones: disadvantage, discrimination, disempowerment, exclusion, inequality, silencing, stigmatisation, victimisation and so on. This paper considers this ambivalence and traces etymological roots (and routes) by which we understand the margin, the marginalised and marginalisation.

The traditional drafting and subsequent implementation of international refugee law have been criticised for relying on a male-centric understanding of persecution. Whilst this framework has recently shifted to include a more gender-sensitive interpretation, I argue that this introduction of gender within refugee status determination has traditionally relied on narratives infused with gendered and racialised stereotypes. In particular, it relies on a ‘white saviour’ colonial narrative that perceives refugee women as vulnerable victims in need of saving. Drawing on a decolonial and critical epistemological analysis that includes both a race and gender dimension, I unpack the epistemic violence and hidden colonial legacies in the representation of refugee women in case-law. Ultimately, this article concludes with a call for reframing the legal narrative around refugee women by approaching them as political actors rather than oppressed and vulnerable subjects.

The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.

The impact of H.L.A. Hart's The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

This paper expounds some critical reflections on Pierre Legrand's recent account of James Gordley's and James Whitman's comparative methodologies. Pushing his unconventional writing style to the limits and labelling Gordley's ‘positivist’ and Whitman's ‘cultural’ comparative law, Legrand's piece appears to be taking the first step towards a new, more sensitive phase for the comparative study of law and legal cultures. The paper argues that, contrary to what might be first thought, Legrand's ‘sensitive epistemology’ cannot act as a gateway to cultural otherness. This is because it is wholly in line with the constructivist objectification of life that characterises the study and practice of law both within and outside the comparative-law dimension.

Aiming to ensure a responsive and socially relevant approach to court cases, judiciaries have initiated innovative projects, such as problem-solving community courts, over the last three decades. In this socio-legal case study, I analyse the legal transplantation of a community court from the US to the Netherlands. Drawing on eighteen months of ethnographic field work (interviews, observations and file research), the study shows that, during the transplantation process, the goal of serving the neighbourhood receded into the background, while the goal of solving the problems of defendants gained even more prominence than it already had at the inception of the court. The conditions that have played a role in the path that the court has carved out to legitimise its activities differ from its American counterparts. The adjustments signify important internal legal cultural differences and illustrates how the implementation process is formed by opinions about the proper role of judges.

By browsing the website of Land Matrix, one can measure the extent of land-related large-scale investments in natural resources (LRINRs) and place it on the world map. At the time of writing, the extent of these investments covers an area equal to the surfaces of Spain and Portugal together – or, for football fans, around 60 million football pitches. These investment operations have often been saluted as instrumental to achieve the developmental needs of host countries and as the necessary private counterpart to state (and interstate) efforts aimed at (sustainable) development goals. Yet, the realities on the ground offer a scenario characterised by severe instances of displacement of indigenous or local communities and environmental disruptions. The starting point of this short essay is that these ‘externalities’ are generated through the legal construct enabling the implementation of these investment operations. As such, this contribution lies neatly in the line of research set forth in the excellent books of Kinnari Bhatt and Jennifer Lander, from the perspective of both the development culture shaping these investment operations and the private–public environment in which these are situated. The essay tries and dialogues with both components, while focusing at a metalevel on the theoretical shifts potentially geared to turn a ‘tale of exclusion’ into a ‘tale of inclusion’.

This article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africa's constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

The law of the city degrades time to the dimension of space. The cityscape replaces a horizon made by woods, fields and streams with a jagged silhouette of rectilinear buildings, lots and thoroughfares. Geometrically speaking, a city street is a line that has been transected into segments called blocks. Blocks, in turn, are further segmented by the placement of individual buildings, which are enumerated as ‘addresses’ in the manner of sequenced moments on the universal timeline. The city, like the law, is produced by human hands according to the logic of the conceptual pairs which the idea of linear time makes possible: ‘cause and caused’, ‘ground and grounded’ and ‘means and end’. But there is something profoundly unreal about both of these institutional spaces: at the end of the day, the Unreal City mentioned in T. S. Eliot’s The Waste Land corresponds to a sort of Unreal Law. Both the city and the law manifest freedom’s impossible attempt to realise its own antithesis by substituting space for time, being for becoming, reason for chance, justification for responsibility and redemption for tragedy.

In its concluding observations for Cyprus, the UN Convention on the Rights of Persons with Disabilities (CRPD) Committee stated that it ‘is concerned about the insufficiency of legal provisions and accessible mechanisms to detect, report, prevent and combat all forms of violence’.1 This paper focuses on the independent monitoring obligation Article 16(3) CRPD places on states parties, and discusses the implications of the insufficient implementation of Article 16(3) as it affects adults with intellectual disabilities in Cyprus. It examines the existing monitoring frameworks, explains why they do not meet with Article 16(3) CRPD requirements and explores the relationship of the national human rights institutions (NHRIs) with Article 16(3). This paper enables understanding as to how, despite pre-existing monitoring frameworks in place, no independent monitoring action has been taken since the ratification of the CRPD. It argues that there is an immediate need for measures to achieve the implementation of Article 16(3) and makes recommendations for Cyprus and other states parties.