Traditional doctrinal scholarship provides an important service to practising lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their interrelationship (Chynoweth, 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities, and feed back in to legal practice once they are used in deciding cases. The method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell, 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney, 1998, p. 76; Vick, 2004), for ‘not being self-conscious about its assumptions’ (Twining, 1999, p. 44) and for cultivating what Geoffrey Samuel (2009) calls the ‘authority paradigm’. Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called the ‘practical insider attitudes’ (Twining, 2000, p. 129; for a discussion, see Banakar, 2003, p. 8). Externally, i.e. from the standpoint of policy-makers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm's normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel, 2009, p. 432). It fosters an understanding of the law as a system, which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel, 2009; see also Banakar, 2009b). These scholars place the law in the broader sociocultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.

The introduction of the Heavily Indebted Poor Countries (HIPC) initiative in 1996 established landmark legal and policy innovations both in the regulatory landscape of sovereign debt and in the framework of international development finance. As the HIPC framework draws to a close, this paper reviews the impact of this initiative on the regulation of sovereign debt, in particular the governance of third world debt. The paper considers the implications of the initiative's explicit link between debt restructuring and development policy and its incorporation of non-traditional normative values, such as poverty reduction and participatory development, into the legal and political discourse of sovereign debt. The paper argues that while the changes which brought about the HIPC initiative have led to a number of key initiatives to reform the governance of third world debt, they have also had the contradictory effect of reinforcing the core disciplinary discourses and pre-existing practices of the sovereign debt regime.

Does legislation that grants land rights necessarily ensure justice? The Forest Rights Act of 2006 (FRA) in India, a landmark social justice law, aims to enhance land security for forest peoples. Increasingly displaced by development and extractive industries that intensify impoverishment, indigenous peoples in India should, with the FRA, be able to protect their land, their livelihoods and their culture. Continued government violations of forest land rights in the name of development highlight that economically vulnerable populations lack the power to take advantage of legislation. I examine the tension of current indigenous land struggles in the context of the legal frameworks of the FRA and the neoliberal culture of India.

This paper develops a rhetorical critique of recent cases on migration and access to health care in Britain. It argues that the national territory, once a taken-for-granted starting point for reasoning in medical law, has lost its common-sense status as a result of neoliberal globalisation. This is evident in recent decisions involving on the one hand HIV-positive asylum seekers coming to the UK and on the other hand British ‘health tourists’ seeking funding for treatment elsewhere in the European Union. Courts are aware that many of these cases are likely to call forth the sympathy of audiences for the individual concerned, further undermining their privileging of the national scale. In curbing this ‘politics of pity’ they adopt a range of persuasive strategies.

Managerial devices are rapidly developing as a means for driving the legal performance of organisations, including those of states and corporations. This paper explores the managerial rationality underpinning global legal indicators, and the constraints they convey on institutional behaviour. In particular, it argues that indicators are better understood as part of a system of management control and distributed governance, which is steadily eroding state-centred forms of authority, including state law. In this context, legitimacy and reactivity are contingent to their cycle of production and implementation, which is fourfold: data-collecting, benchmarking, auditing and allocating incentives. Each process is meant to generate respectively subjectification, self-knowledge by comparison, accountability and stimulus for action. Indicators with higher degrees of legitimacy become entrenched in institutional practices and legal decision-making processes. The paper concludes that regulatory spaces where indicators unfold need critical and political scrutiny to expose their pernicious effects, undesirable uses and inevitable misuses.

This article argues that what is seen as a justice cascade may in fact amount to merely an advocacy cascade, which has facilitated justice policies that democratising states would inevitably have pursued (and helped neutralise opposition), but which in causal terms has been far less influential on justice policy than is commonly assumed. Because transitional justice is generally presented in very idealistic terms, scholars in the field have begun to acknowledge that its virtuous effects are more easily presumed than proven (Van der Merwe, 2009, p. 121). Amongst advocates and activists in particular, one sees in the literature an emotional commitment to transitional justice that generally foregoes doubts about its overall efficacy even where isolated shortcomings are accepted. Policy has hitherto proceeded less from analysis to conclusions than from commitments to action. Some argue that ‘the commitment to advocacy has come at the expense of progress in empirical research’ (Vinjamuri and Snyder, 2004, p. 345) – the benefits of certain mechanisms are assumed instead of treated as empirical propositions to be proven rigorously. Because so many of the early debates about transitional justice took the form of partisan advocacy in the dichotomised days of the ‘justice versus peace’ and ‘truth versus justice’, prospective hypotheses about likely outcomes dominated the literature at the expense of retrospective assessments of what generally had or had not worked. For at least a decade, scholars have noted the paucity of studies systematically examining the correlation between transitional justice and social reconstruction. Subsequently, the literature has variously been criticised for its dependency on anecdote and hypothesis (Crocker, 2002, p. 541), analogy (Brahm, 2008, p. 3) and wishful thinking (Olsen, Payne and Reiter, 2010, pp. 25–26). Until recently, scholarship had primarily been based on single or dual mechanism case-studies and comparative qualitative case-studies of a limited number of states, which gave disproportionate emphasis to certain transitions or transition types conducive to study. This in turn made generally applicable policy conclusions difficult to elaborate. It has been argued that human rights research in general, and transitional justice research in particular, are enterprises directed at manufacturing legitimacy for their fields of practice (Gready, 2009, p. 159). Such endeavours must, however, retain at least a threshold plausibility. As a fear developed among practitioners and theorists about the damage to the credibility of transitional justice from wild, unsubstantiated claims, there has emerged in recent years a commendable attempt to clarify the causal relationships (if any) between individual mechanisms and general ends. By employing social science methodologies and hard data, a tentative literature has emerged on how to assess the impact of transitional justice (Thoms, Ron and Paris, 2010). The expectation is that this scholarship can chip away at falsity and overly ambitious claims. This article examines the extent to which two recent works do this. After surveying what is novel about their distinctive methodologies, Part II examines the primary difference between the works, namely the extent to which the work of transnational human rights activists has impacted on the decision of democratising states to pursue criminal accountability for crimes of the past. Part III explores alternative explanations for why states are seemingly more willing to undertake trials and the extent to which the works in question control for these variables. Part IV considers the extent to which the normative change both books note has impacted on the security dilemmas inherent in transitional accountability. The article concludes that transitional justice research has some distance yet to travel in disentangling correlation from cause.

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

This paper attempts to counter legal studies’ common reading of court TV shows by starting with an understanding of them as television, rather comparing them to ‘real courts’. It analyses two recent examples of British court TV shows – Judge Rinder (ITV, 2014–) and Judge Geordie (MTV, 2015) – to draw out how the text's form establishes particular kinds of ‘televisual legal consciousness’. Judge Rinder’s daytime address and his camped authority allow a frame in which humour can disarm conflict and reveal wider political injustice. Judge Geordie’s irreverent upturning of the judged into judge draws upon the registers of youth reality television to privilege affect and emotion. In staging some of the tensions between law's masculine rationality and popular culture's feminine emotionality, these shows enact their interdependence. Such an analysis that includes attention to form, address and genre allows us a deeper exploration of the relationship between television, law and the everyday.

This paper examines the work of lawyers, judges and country experts involved in asylum and migration litigation. I begin by analysing their work in the wider semi-autonomous asylum field within which a number of powerful institutions operate to shape policy, define the roles of key actors and determine access to legal redress/justice by asylum applicants and migrants. To understand the work of these three legal actors, I analyse four very different types of legal cases involving asylum, foreign adoption and migration law. An analysis of these cases helps to identify the constraints on effective litigation on behalf of refugees and migrants against the British Home Office and it illustrates the fact that it is Home Office policy, and the decisions taken by Home Office officials, that created the injustice for the individuals concerned by blurring the ‘bright line’ differentiating between the rights of nationals and those of ‘foreigners’.

This paper builds on a developing field of enquiry regarding the potency of film as an intervention into normative patterns in popular culture which are recognisable in a legal pluralist sense, and that relate to more standard legal analyses of constitutional development. The argument is developed that Steve McQueen in Hunger has made a film which marries a particular filmic formal device of lingering on highly aestheticised details of human behaviour with an overall filmic sensibility of refusing ‘politics’ in favour of ‘humanity’. The film demonstrates a resounding success, both in critical terms and in having the film accepted on its own terms of ‘humanity’. The suggestion in this paper is that the ongoing processes of ‘dealing with the past’ in Northern Ireland and other post-conflict societies may have something to learn from the marriage of idea and aesthetic form in Hunger.

Victims of controlling domestic violence who also have family law issues continue to have their safety compromised and to suffer the abusive use of the legal system by perpetrators. A range of conditions contribute to this systemic problem, including the fragmentation of the legal ‘system’ faced by victims, and the emphasis given to contact with fathers and to private dispute resolution. At a more abstract level, unwillingness to look at past conduct and to attribute fault in family law proceedings has led to a failure to pay attention to issues of justice in family law. The possibilities for the use of restorative justice in these cases are explored. It is argued that there are considerable dangers, particularly with a generic model of restorative justice. There is, however, some potential in restorative justice processes which are carefully designed for the domestic violence context. In particular, such processes offer the potential to extend an empowering ‘justice’ rather than a ‘dispute resolution’ frame to a wider range of cases and to overcome the current fragmentation of the legal system. It is argued that our concern should be with how to meet the needs of victims of domestic violence, rather than with the good of restorative justice in theory. In addition, we must continue to work on improvements to the formal legal system as alternatives to restorative justice.

Among the diverse approaches to comparison in socio-legal studies, those that employ qualitative research, richness of detail and attention to context are the focus of this special issue. The Introduction draws on comparative law and social science literature to argue that comparison amongst studies of laws in contexts can follow different trajectories: the comparison may start from an assumption of similarity – in form, purposes or context – in order to identify significant differences; or it may identify significant similarity across social and cultural divides. What unites many of the projects of comparison undertaken by qualitative empirical researchers is that the points of relevant comparison are identified within the complexity of the empirical studies at hand; and they are allowed to emerge, or change, as the researcher comes to understand the facts and issues more deeply.

This paper aims at providing an account of the Islamic conception of Gharar in contrast to the current Western conceptualisation of risk, using the respective financial legal frameworks of both as the criterion. One of the more decisive stakes of the difference in approach between the Islamic and contemporary Western legal orders today concern the regulation of financial markets; specifically, the definitions of risk and uncertainty – crucial characteristics of modern economies – can be understood as preferentially related to specific features of Islamic law. In the end, according to Knight, money-creation processes are centred on uncertainty. Without uncertainty, there is no profit. This is why, although different at first sight, Islamic finance with its understanding of permissible Gharar and Western finance with its uncertainty-aversion trend have become more resilient, especially since the financial crisis (2007–2010).

This paper undertakes a sceptical analysis of the significance for the protection of migrants’ rights represented by the Sustainable Development Goals (SDGs) 2030 and the UN Global Compact for Migration (GCM). Despite the positive view taken by many of these frameworks, I argue that, taken together, the SDGs and the GCM represent an acknowledgement of the failure of the international system of human rights protection to deal effectively with the protection of migrants’ rights. With particular reference to the UN Migrant Workers Convention, I argue that adoption of the GCM underscores a decisive shift from the realm of binding international law to soft law for the purposes of dealing with migrants’ rights. While acknowledging some of the signal benefits of this new regime, I highlight some of the many signs suggesting that these twin international developments do not guarantee progress on the road to the protection of migrants’ rights.

The paper compares the involvement of four regional economic courts in legal disputes mirroring constitutional, political and social crises at national or regional levels. These four judicial bodies of the EU, the Andean Community, the East African Community and the Central American Integration System have all faced varied forms of resistance to their involvement and their general authority. By comparing these four case-studies from across the globe, the paper identifies institutional and contextual factors that explain the uneven resistance. While the regional economic courts in Central America and East Africa were subject to backlash from the Member States, their counterparts in Europe and Latin America avoided backlash but at the price of achieving only a narrow authority.

Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the ‘legal fiction’ label to signal those writers' sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognised as self-justifying may have become less distinct over the past century.

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria offered for essential contestation. I buttress this claim with the explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it would yield a greater understanding of uses of the concept to which it is applied. I then show that, even if law meets some basic criteria of essential contestation, applying the appellation does not helpfully illuminate the most general concept of law and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law.

There is currently no mechanism – no journal, no learned society – somehow integrating Portuguese sociology of law, despite a considerable academic production. In an attempt to appreciate globally and substantially this production, this paper takes as a starting point the theory of semi-periphery formulated by Boaventura de Sousa Santos in the 1980s, and revisits the findings of socio-legal research carried out in Portugal over the recent decades in the light of that theory. The conclusion that can be drawn from this exercise is that the theory of semi-periphery – provided it is upgraded in order to better take into account features of recent processes of globalisation – still supplies a valuable framework for the reflection on the social, economic and political conditions that favour uses of the law as a tool for human groupings to govern themselves.

This paper will evaluate the obstacles faced by victim-survivors of historical abuse, particularly victim-survivors of forced labour in Magdalene Laundries in Ireland and the stolen wages of Australian Aborigines and Torres Strait Islanders, in a post-colonial transitional justice framework. First, the paper identifies challenges in contextualising comparative interdisciplinary historical research in terms of transitional justice. Second, the paper considers the economic contribution of unpaid labour in the Australian and Irish contexts and, third, goes on to examine the historical denial of rights and redress in both settings. The paper then evaluates the different challenges in responding to legacies of historical abuse, especially unpaid wages in both states. A final section concludes with the argument that redress provided in both instances represents a form of paternalism perpetuating the colonial approach to governance, rather than the provision of the legal rights of citizens, and that this paternalism has specific implications for women who continue to be marginalised by contemporary regimes.

This paper attempts first to explain Bentham's distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham's ontology and epistemology, and more specifically the tension between the objectivist and subjectivist Bentham. It is argued that Bentham's objections to legal fictions were traceable to their use in deceptive or fallacious argument, whilst his logic provided a means of rehabilitating the use of the names of those fictitious entities which could be explicated through his technique of paraphrasis (that is, explained in terms of real entities), in relation to which both meaning and truth might be exchanged. This realist perspective differs markedly from that of Fuller, who, following Vaihinger, rejects the attempt to replace fiction with truth. There are significant areas of agreement between Bentham and Fuller, on the figurative nature of much language, and even, in certain contexts, on the utility of the self-conscious deployment of fictions. However, in the context of law and morality, it appears that his development of a route to truth through paraphrasis makes Bentham the enemy of fictions, since, in this field at least, truth and utility stand or fall together.