This paper contributes to the debate on the role of anthropological expertise in the legal sphere by broadening the analytical field of vision. Rather than focusing on the anthropologist, his or her positionality, the epistemic status of anthropological knowledge or the ensuing ethical questions – as the other contributions to this themed section do – we turn the question around. Based on empirical data from a survey conducted among European judges on judiciary practice and sociocultural diversity, our focus here is on the question of how judges perceive, assess and accommodate sociocultural diversity in their daily decision-making. We furthermore investigate the conditions under which external expertise is called upon in specific legal settings and situations. We develop a conceptual argument for rethinking the role of anthropological knowledge and research in legal practice and argue for the need to pursue new forms of collaborative ethnography with judges that go beyond participant observation of their courtroom interactions. Working together with the judges who give decisions on cases, we claim, can provide scope for both critical reflection and applied problem-solving.

Digital financial-inclusion platforms have gained increasing attention as instruments for economic growth that also contribute to development goals such as poverty reduction and gender equality. One of the most acclaimed digital financial platforms to date is M-Pesa (M for mobile, pesa is Swahili for money) in Kenya – a mobile-phone-enabled money-transfer service realised via a public–private partnership between the UK's Department for International Development, Vodafone and its local partner, Safaricom. Since its launch in 2007, M-Pesa has grown at a phenomenal rate and it is now used by over 70 per cent of the Kenyan population. Bringing together socio-legal enquiry, feminist political economy analysis and post-colonial literature, this paper discusses M-Pesa's inclusionary regulatory arrangements and examines their implications for gender equality. It shows that, while these arrangements contribute to including women in the formal financial system, they fail to adopt the redistributive measures necessary to address the gendered socio-economic disadvantages that cause and reproduce financial exclusion.

International human rights law attaches the right of health care to the person. States, however, predicate this right on membership in the national community and access to publicly subsidised health care is normally contingent on national membership. With this in mind, this article considers the significance of a human rights approach to access to health care and undertakes a comparative study of health-care provision for irregular migrants in France and the UK. Irregular migrants are ineligible for national membership because they have breached immigration laws. Consequently their right to health care may only arise from international human rights law. This comparative study, however, shows that states resist the idea of a right to health care for people they regard as a threat to national sovereignty. Yet the author posits that the exercise of the government's immigration power may be reconciled with the realisation of irregular migrants' human right to health care.

In the last four decades, there has been a significant increase in the number and variety of appropriate dispute-resolution (ADR) institutions and processes in Australia as a critical aspect of improved access to justice. Although more people can get assistance to resolve their disputes, the issues of whether this access is shared equally within the community, how the disadvantaged fare in these processes and what type of justice is provided by the various ADR processes are explored. The relevance of legislative objectives of ADR fora and processes to justice outcomes is highlighted. It is argued that ADR processes need to be designed and implemented bearing in mind the type/nature of the dispute, parties involved and availability of resources, and to have an overarching objective of promoting access to justice for users. Additionally, improved access to justice requires ongoing and rigorous evaluation of ADR processes to ascertain whether justice objectives are being achieved.

The Global Compact for Safe, Orderly and Regular Migration has prompted an intense political debate at both the international and domestic levels. Most controversies focus on its legal stance and highlight the hybrid character of the Compact as a soft-law instrument. While acknowledging the political nature of the Compact, this paper delves into its legal dimensions from the perspective of international law. This inquiry into its normative content discloses three main features: (1) the Compact is not a codification of international legal norms governing migration; it is an instrument of both (2) consolidation and (3) expansion of international law to foster inter-governmental co-operation and promote safe, orderly and regular migration.

Like all babies, Harry Potter was born vulnerable. Like most babies, he was cared for and loved by those closest to him. When Harry was still an infant, however, the most horrible thing imaginable happened. His parents were killed by Voldemort; in turn, the evil wizard turned his murderous wrath on baby Harry. But Harry was too strong for Voldemort. Without realising it, he destroyed Voldemort’s powers and survived with only a jagged scar on his forehead. Harry Potter may have been vulnerable. But he was also capable of directing the history of the entire wizard world.

This paper explores the role of anthropological expertise in shaping the outcome of legal proceedings under conditions of cultural diversity. Taking the state-driven land-restitution process in post-apartheid South Africa as its point of reference, the text reflects upon the work of anthropological experts in a number of cases and shows how their theoretical and political stances shaped the trajectories of their legal engagements. Pointing towards frictions that emerge in acts of translation between the seemingly objectivist rhetoric evoked in court and more relativist and subjectivist stances within the academy, the paper revisits and problematises debates around strategic essentialism. Sketching instead the contours of a ‘recursive anthropology’ that expresses itself in terms of a post-positivist universalism, the paper turns on the author's use of his own expertise in support of a White land claim, probing – and critically reflecting upon – the practical potential of a form of expertise grounded in such a recursive anthropology.

In attempts to improve the efficiency of development efforts over the past few decades private sector participation in the delivery of basic services has been promoted to a varying extent. Roughly in tandem with this, there has been movement to increase the accountability of corporations, particularly transnational corporations (TNCs), for human rights violations. Rather than engaging directly in the legal debate about the applicability of human rights standards to corporate activity, this article essentially looks at the issue from the inside out through the collection of empirical evidence. By focusing on the emergent right to water as a case-study, it examines how TNCs engaged in water service delivery in the development context understand and use the language of rights. In doing so, it discusses how current engagement by the TNCs with human rights language may influence proposed corporate human rights accountability frameworks and current attempts to close the globalisation governance gap.

How is policy implementation affected by increased polarisation and extreme shifts in politics? In order to address this question, the paper focuses on frontline workers’ (street-level bureaucrats’) interpretations of political shifts and how these are then translated into practice. Building on ethnographic fieldwork conducted among social workers in Northeast Brazil, the paper proposes a theoretical framework for analysing the influence of political landscapes on policy implementation by foregrounding the political processes in which these agents play a critical role. Drawing on empirical data, the paper proposes ideal types of possible outcomes of translation practices – counterbalance, collaboration, resistance – that function as a guiding framework for future research.

This paper shows how international law scholarship might adopt a constructivist interdisciplinary research design to better engage with the political and social context of legal rules and institutions. In 2005 the Asia-Pacific Partnership was launched by the United States and Australia as a climate change institution outside the UN climate process. Controversially, the Member States claimed the Asia-Pacific Partnership was complementary to the UN climate process. This paper investigates the veracity of this claim by analysing the normative compatibility of the Partnership and the UN climate process. The paper adopts Dryzek's discourse theory to analyse the shared ideas and assumptions underlying both institutions. This analysis indicates that the Asia-Pacific Partnership embodied a deep market-liberal discourse that is in significant tension with the more interventionist and equity-based principles underpinning the UN climate process. This market-liberal discourse is important for understanding recent developments in global climate governance.

The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.

This paper looks at expectations people have of informal justice mechanisms through a rich empirical dataset of 2,775 recent ombudsman users in Germany and the UK. In a cross-cultural comparison, the ombudsman as a model of justice is explored. Not much is known about people's expectations of the ombudsman model; this paper starts to fill the gap. Four roles became apparent in cross-cultural narratives in the dataset: people who interact with ombudsmen expect them to be interpreters, advocates, allies and instruments. The identified roles are largely common to both countries, but in some aspects they show national specificities. These national specificities are seen mainly in the use of language; in Germany, it is more legalistic in comparison to the UK. I argue that this might be related to what has been described as the general legal culture of each country and the institutional set-up.

It was a hot afternoon on 10 April 1950, in the town of Chapra in the eastern Indian province of Bihar. As most people had retired indoors to avoid the heat, the women's clothing store run by Kedar Nath had suddenly become a hive of activity. His munib (accountant) had gone home early on receiving news of the sudden illness of his son, and his shop had been visited by the local Magistrate and the Deputy Superintendent of Police, the leading figures in the district administration. The Magistrate, Mr S. K Ghatak, ordered Kedar Nath to open up his stores and make his registers available, and in this process discovered that Nath had twenty-five more saris than were accounted for in the stock register. Kedar Nath's relation protested that the saris had been bought that very morning, and that his munib's unexpected absence had resulted in the stocks not being updated immediately. The district officials were not convinced and Kedar Nath was arrested for not having proper accounts of the clothes in his stock. The district court convicted Kedar Nath for violating the terms of Bihar Cotton, Cloth and Yarn (Control Order) 1948, and the Essential Supplies (Temporary Powers) Act 1946 (ESA), and sentenced him to a fine and a month of rigorous imprisonment.

While migration is a policy field that is fairly state-centric, the prominent role of the EU in the development of international migration law and policy has been acknowledged, to some extent, by the international community. This paper scrutinises the EU's role and impact during the preparatory and inter-governmental talks leading to the adoption of the Global Compact for Safe, Orderly and Regular Migration (GCM). A central question is the degree to which the EU influenced negotiations and their outcome; and how the international community received the EU's external action in this matter. Next to mapping the EU's substantive input shaping the process, the EU's internal machinery to formulate its position and the challenges faced within the bloc are also explored. The GCM process also illustrates the willingness of the international community – or the lack of it – to elevate European standards to the global level in the highly complex and politicised domain of migration.

This article presents an empirical study of Jewish and Muslim women who go through divorce in Canada, drawing on a ‘left law and economics’ methodology. Religious law and family law have long been considered outside the market and, as a result, are more rarely accounted for in the law and economics literature. According to dominant narratives, religious family law is experienced by women either as an exceptional form of oppression or as a form of spiritual religious identity. In this article, I apply a ‘left law and economics’ approach to deconstruct these notions. On the basis of my socio-legal fieldwork with Jewish and Muslim women in three Canadian cities, I identify the background formal and informal legal rules, social norms and distributional practices that help produce asymmetric bargaining locations for women. I employ the economic language of costs/benefits to illustrate the ways in which religious parties bargain strategically upon divorce, although these market claims are surprisingly underrecognised by the legal system. Such empirical knowledge helps disenchant the idea that religious law is systematically used as punishing forces that make women worse off economically or morally inferior. It also allows for a distributive analysis which reveals how husbands and wives negotiate economic resources, desires and day-to-day decisions in all kinds of fair and unfair ways, flying in the face of conventional narratives surrounding women and religion.

The Hartian tradition of jurisprudence utilises linguistic philosophy to examine legal communications, most particularly those made by judges, and seeks to reach conclusions about the commitment of legal actors towards legal systems, the part played by morality, and what aspects of law involve the exercise of discretion. But this approach fails to take account of the nature of communication within modern society. If one approaches these issues through the application of communication theory, applying Niklas Luhmann’s concept of redundancy, our understanding alters radically. Systems theory explains how and why the communication resources available to legal actors are both limited and system specific. Whilst one can accept that actors use communications to achieve particular legal operations, one cannot attribute the meaning of these communications to their intentions, motivations or commitments. This conclusion and reasons for it change our understanding of long-standing and unresolved jurisprudential debates about the nature of judicial discourse.

This paper provides the first overarching exploration and discussion of the relationship between law and compassion, based on a broad review of law and associated literature. The paper reviews the English-language literature worldwide, identifying and analysing key themes. It lays out a number of themes by which the relationship may be examined, including the problematic of defining compassion, addressing the concept of compassion, its components, to whom it is owed and under what conditions it is owed. The paper reviews how compassion is defined in formal law, including in case-law and legislation across a range of common-law and civil-law countries, and in international human rights and humanitarian law−revealing various judicial and legislative approaches to the place, meaning and application of compassion. The discussion of primary and secondary sources suggests a number of ways of thinking about the place or absence of compassion in law: how it helps theorise law, including its normative presuppositions and the conceptualisation of law. The paper concludes with consideration of possible pathways for future research on law and compassion.

This paper contains three main arguments. First, tropical forests have become objects of climate and environmental governance under the REDD+ mechanism in the UN Framework Convention on Climate Change that combines legal, market and scientific rationalities with measurement, reporting and verification (MRV) technologies in a neoliberal green governmentality regime. Second, the current structures and institutions of governance are contradictory and international environmental law provides inadequate means for regulating and protecting forests. Third, these deficiencies point to the need for imaginative alternative forms of governance to prevent further deforestation.

In this paper we explore one type of commons – town and village greens – which are an important feature of the rural and, increasingly, the urban, English landscape. Greens are an ancient form of commons, but they are increasingly recognised as having contemporary significance, particularly because of their potential to act as a reservoir for natural resources and their enjoyment. They are, in other words, emerging out of a ‘feudal box’. We focus on the fact that town and village greens are recognised in law by their association with a group of people defined by their physical proximity to the land which is to be registered. Although this does not in itself constitute a community, the law requires for the registration of land as a town or village green a certain degree of organisation and self-selection and this has in the past fostered both a sense of subjective belief in ‘belonging’, as well as exclusion (the rights of local people being potentially ‘diluted’ by the use of the land by those from outside the locality). As well as helping to produce and recognise community and community identity, then, commons may simultaneously produce the conditions for disassociation and exclusion. In this context, we consider how law defines and upholds notions of locality, and also the ways in which an increasingly powerful environmental discourse might be seen to challenge the primacy given to locality as a way of defining and creating greens and, more generally, the practical effects of this on how decisions are made about preserving these spaces as ‘common’. We consider the scope of the public trust doctrine as providing an example of how law is capable of accommodating ideas of shared nature and natural resources, in this case providing a form of public ownership over natural resources. Whilst our analysis is rooted firmly in the law relating to town and village greens in England and Wales, this body of law displays certain important features more broadly applicable to a range of other types of common land, and raises more general issues about how law supports certain interests in land, often to the exclusion of others.

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil/criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from a systems-theoretical perspective. This contribution makes use of systems theory's unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.