Calls for the adoption of a universal capacity approach to replace dedicated mental health law are motivated by the idea that the measures designed to protect patient autonomy in legislation such as the Mental Capacity Act 2005 should apply to everyone, including people with a psychiatric diagnosis. In this article it is argued that a diachronic perspective on questions of mental capacity is necessary if capacity law is to play this broader role, but that employing this perspective in assessments of capacity undermines central patient autonomy preserving features of the legislation, which presents a moral dilemma.

Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effective than legal controls, even in systems committed to parliamentary supremacy. Political controls can sometimes be deployed effectively more quickly than legal ones can. Even in settings seemingly quite unfavourable to the development of constraints on the flow of power to executive government during emergencies, political controls can work, and sometimes might work in real time more effectively than judicial controls do in real time.

The attempt to secure maternity rights has been a major focus of decades of campaigning for women's equality. However, it is of concern that maternity rights might reinforce women's responsibility for childcare. This paper considers how we bring men back into the frame, through a critical assessment of the contrasting approaches in Europe and the US to claims by fathers for parenting rights. It is argued that the goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. This is only possible if the conception of equality is shaped by a conscious and explicit commitment to the social value of parenthood. Substantive equality can only be genuinely furthered if pregnancy and parenthood are appropriately distinguished. Whereas pregnancy is unique and should be treated as such, a true application of substantive equality requires a ‘levelling up’ option, extending women's parenting rights to fathers.

The principal aim of gender mainstreaming is to achieve gender equality by implementing gender as a central component at all levels within the UN system. Previous work has focused on gender mainstreaming as an abstract concept, whereas this paper empirically examines efforts to implement UN Security Council Resolution 1325 (UNSCR 1325) and by doing so evaluates the process of mainstreaming. This paper suggests that gender mainstreaming has limited potential to achieve gender empowerment and equality. A lack of benchmarks and targets within UNSCR 1325 undermines the Security Council’s commitment to women’s experiences of armed conflict. Gender mainstreaming has largely not been implemented at a macro-level (within the UN), although at a micro-level, civil society organisations have made some attempts to use UNSCR 1325 to achieve gender empowerment. Ultimately, however, UNSCR 1325 is not radical enough to be used as a transformative gender mainstreaming tool.

This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes' health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport's various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler's theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon's and Simon's work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

This paper examines China's emerging animal anti-cruelty law and the extent to which it meets established animal welfare norms or not. Features that render the draft laws distinctly Chinese include the restrictive interpretation of cruelty as deliberate abuse, stringent pet control stipulations, and compromises on the consumption of dogs and cats. Meanwhile, the draft laws also reflect the Western experience. Animals are categorised according to their use; the ‘unnecessary suffering’ concept is the central philosophical tenet; and the enactment of the law will certainly result from strategic, pragmatic compromise. We conclude that 200 years of animal protection policy-making, the involvement of policy elites in drafting the Chinese laws, and the globalisation of trade, have made it difficult for China to do anything other than develop an animal protection regime broadly consistent with what exists in the West, although some unique Chinese features can also be identified in the proposed laws.

The nature of the contribution that fathers make to families is the subject of intense debate by both academics and policymakers. Contact between non-resident fathers and their children has been promoted by government and the courts, but remains difficult to achieve. This paper reports on interview data collected from fathers, mothers and their adolescent children in intact families on the perceptions of fathering practices and the factors that influence them. In addition, the nature and extent of fathers’ involvement with their children is explored in relation to the problem of ‘boundary setting’.

While the traditional, rather distant, breadwinning father has disappeared, there is no evidence from this study of a shift towards the kind of father who takes equal day-to-day responsibility for his children. Rather, the changes in the nature of fathers’ involvement with their children are more subtle, relying to a large extent on an appreciation of the importance of ‘passive care’ and of mediation by mothers. We suggest that these findings have important implications for what might be expected by and of fathers when relationships break-up, and for the development of policies to encourage father involvement.

In this article, I argue that the reclamation of language and the rediscovery of victims’ voices in post-conflict contexts are vital to the realisation of full human rights for all citizens, and necessary preludes to processes of truth recovery. Allowing and encouraging victims to engage in dialogue and public storytelling constitutes a crucial part of the transitional legal and political process. However, as a consequence of campaigns of political murder, torture and detention by oppressive regimes many victims of violence have been returned to a ‘pre-language’ state, in which the articulation of coherent individual and group histories has become increasingly difficult. I contend that enabling victims to reclaim language and narrate their stories is a crucial aspect of the legal, social and political ‘rebalancing project’ necessary in transitional societies to right the wrongs of the past.

This paper suggests a theoretical and methodological framework that integrates Bourdieu’s conception of the juridical field with Mnookin and Kornhauser’s claim of the centrality of the action occurring in the shadow of the law. This framework is constructed based on a study of the Israeli legal field governing divorce that included the analysis of 360 divorce files and in-depth interviews with more than 40 divorcees and legal and therapeutic professionals. The study allows a rare exploration of a legal field in action, including the main positions within the field and the power relations between them, as well as the field’s boundaries and game rules. The findings illustrate the importance of Bourdieu’s fields theory if and when opened up to the informal dimensions of law and demonstrate the potential of the suggested framework to the sociological understanding of law in action.

The legal consciousness of citizens receiving the law has been extensively explored but little attention has been paid to the legal consciousness of individuals applying the law. This paper draws on interviews with forty government officials in the Refugee Review Tribunal of Australia to address this concern, analysing how government bureaucrats think about law. In doing so, it identifies a series of underlying ideals informing the officials’ legal identification narratives. It presents a heuristic that positions bureaucratic legal identification in relation to broader moral ideals, demonstrating that as government officials’ identification with law increases so too does their idealisation of intellect and information processing. Conversely, as the officials’ identification with law decreases, their idealisation of experience and truth verification increases. These findings provide new insights into how law works in government, revealing bureaucratic legal identification as structured according to broader moral values, and thereby unearthing legal consciousness’ latent metacognitive dimension.

Using an approach derived from sociological functionalism, this paper proposes a distinctive reconstruction both of the history of constitutionalism and of the changing form of constitutional law in global society. It argues that constitutional norms form adaptive principles for stabilising the inclusionary legal and political functions of society. Classical patterns of legal/political inclusion tended to rely on democratic forms of will formation (constituent power). Contemporary patterns of legal/political inclusion rely, in contrast, on rights. The shift in emphasis from constituent power to rights forms the constitutional foundation for the emerging global political system.

By highlighting a large number of recent studies mainly based on empirical methods, the aim of this paper is to emphasise and illustrate the rising influence of legal sociology in France today, and the interesting results produced. More generally, it is noteworthy to emphasise the growing importance of law and legal domains as a topic of great interest in French social sciences in general. It remains an open question whether this trend is linked to the ‘judicialisation’ of French politics and society and its influence over the academic field, or, alternatively, to the growing capacity of social scientists to resist the monopolistic claim of French academic lawyers on the analysis of legal subjects and to develop their own. Nevertheless, those trends converge towards a better knowledge of French legality, relevant from a national perspective, as well as to assess its contribution to socio-legal knowledge in general.

Since the 1990s, a number of anti-corruption conventions have been adopted due to pressure from international financial institutions, donor countries and governments of major industrialised nations. One of these conventions is the Anti-corruption Protocol adopted by the Southern African Development Community. This article examines this Convention against the backdrop of the principal–agent–client (PAC) model which influences much of the current anti-corruption measures ranging from legal and civil service reform through to privatisation of the public sector. In focusing on the efforts to fight and prevent corruption through legal and public sector reform, this paper highlights the limitations of externally imposed solutions largely driven by donors. Using Tanzania, a country that has seen extensive technical input from donor agencies in reforming the law and bureaucratic structures, as an illustration, this article argues that the limited success of such donor-driven anti-corruption strategies is attributable to a number of reasons ranging from reform policies of donors and paternalistic attitudes to political shifts and antipathy towards external demands for reforms that are fuelled by the colonial past. This paper recommends that for a recipient country to take ownership of the anti-corruption strategies it is important to tailor the PAC model to the cultural, social and political context of the recipient country so that the solutions are seen as an indigenous initiative, thus enabling sustainable change in attitudes and behaviour.

This review essay draws on a recently edited handbook by Esin Örücü and David Nelken to reflect on the methodological concerns and challenges of comparative law and sociolegal research. It argues that the contextualisation of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. It further argues that although the cultural perspective facilitates contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances; for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The essay concludes by proposing that the combination of top-down and bottom-up approaches could provide a meta-methodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and sociolegal researchers to account for how law interacts with, and simultaneously manifests itself at, the macro-, micro- and the intermediary meso-levels of society over time.

The work of the Polish–Russian scholar Leon Petrażycki from the early decades of the twentieth century holds a strikingly paradoxical position in the literature of juristic and socio-legal scholarship: on the one hand, lauded as a supremely valuable contribution to knowledge about the nature of law and, on the other, widely neglected and little known. This paper asks how far Petrażycki's theories, expressed in writings by and about him available to an international readership, can provide insight for contemporary socio-legal studies – not as historical background but as living ideas. How far can his work speak to current issues and inform current debates? What obstacles stand in the way of this? Why have few international scholars engaged with his theories despite their rigour and originality? The paper starts from this last issue before addressing the others. It argues that Petrażycki's radical legal theory offers strikingly distinctive resources for rethinking issues about the role of law in multicultural societies, the nature of developing transnational law, and the significance of law as an aspect or expression of culture.

Is there a stable set of practices or assumptions surrounding dignity, and would these necessarily denote a single foundation sustaining that stability? Two contemporary debates offer contrasting approaches to these questions. In the first, two jurists, who share agreement over the appearances of dignity in post-1945 jurisprudence, disagree as to whether these appearances form an emerging ius commune or a contingent set of conceptions. The second, comparative, debate explores the functional consequences of dignity’s aristocratic resonances. One position posits a continuing relationship between dignity and aristocratic nobility; the other, a functional division between dignity-within-aristocracy and dignity-within-democracy. This article insists that clarification of these debates depends upon a distinction between the epistemology and ontology of dignity, and, further, a distinction between dignity’s genealogy and its grammar. It concludes that a complex genealogical inheritance is at the heart of much disagreement, and that attention to dignity’s use clarifies its deficiencies and its continuing appeal.

In a bid to promote consensus, this response article parses the subtle difference of meaning and emphasis that subsists between the various proponents of the new paradigm of legal capacity by closely reading four articles included in this issue of the Journal.

This paper surveys recent trends in the development of the sociology of law in Denmark. The overall argument of the paper is that, currently, the sociology of law in Denmark is marked by a striking sociological and more specifically institutional and empirical turn. This new direction in scholarship suggests not only a renewed research focus on the institutional dimensions of law but it also – and very differently from work from the 1980s and 1990s – suggests a re-orientation towards sociology more generally. A clear consequence of this return to the sociological core of the sociology of law has been an empirical orientation towards how law is practised, how legal institutions work and, as part of that, how the legal profession takes part in both legal change and transformations of state and society. This new research relies not only on general sociological theory and method but also on the more specific elite sociology, sociology of professions and sociology of knowledge.