This paper examines the diverse responses of the German states to the Code Napoleon at the beginning of the nineteenth century. These states differed both in the extent to which they adopted the Code, and the extent to which they retained the Code after Napoleon's influence waned. In order to identify the causes of adoption and retention of the Code, we use fuzzy-set qualitative comparative analysis (fsQCA). This method is now well established in comparative research in the social sciences but has been little used in comparative legal analysis. We find the following to be among the conditions relevant to the reception of the Code: territorial diversity, control by Napoleon, central state institutions, a feudal economy and society, liberal (enlightented absolutist) rule, nativism among the governing elites and popular anti-French sentiment. The paper also serves to demonstrate the potential of fsQCA as a method for comparative lawyers.

International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.

In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.

The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.

In England and Wales, trial by jury is typically reserved for more serious offences and is by no means the norm of criminal prosecution. Despite this, the jury continues to hold enormous symbolic and practical significance. In a context in which research with ‘real’ juries is prohibited, this paper outlines the findings of a mock study in which members of the public deliberated towards a unanimous verdict, having observed an abbreviated rape trial reconstruction. It reflects on the structural processes (including the use of narrative, the presence of a foreperson and group/inter-personal dynamics) that framed the tone and direction of discussions. In so doing, it generates insight into what may go on behind the closed doors of the jury room in rape cases and – more broadly – highlights the ways in which differently composed juries, when faced with the same scenario, may reach divergent verdicts or embark on radically different routes to reach the same destination. In addition, it explores the extent to which participants, having been directed on appropriate legal tests and burdens of proof, were able to understand and apply these standards; and it reflects on the implications of this in terms of future improvement of the jury trial process, both in rape cases and beyond.

The environmental impact of mass consumerism is a growing concern, with a particular consequence being the production of significant levels of waste goods. Goods are often disposed of whilst still being useable. One proposed method of reducing the environmental impact of the levels of waste of useable goods is freeganism. This paper provides an overview of freeganism, followed by an evaluation of the impact of English criminal law on freeganism. This paper will consider the claim that freegans commit theft. First there is analysis of the possibility that freegans cannot be guilty of theft because they only deal with abandoned property. Although there is considerable strength in this claim, the difficulties with establishing that property is abandoned necessitates the development of an alternative defence. It will be suggested that freeganism is not an activity that is dishonest in a way so as to attract criminal sanction. This argument is based on the structure of the criminal law relating to theft, which has defences based on claims of right, subjective honesty and the considerations of ordinary people (ie jury members). It is concluded that freegans should not be guilty of theft under the current English criminal law.

This paper critically examines the European Insolvency Regulation. It suggests the Regulation contains a fatal flaw at its heart; namely the ‘centre of main interests’ or COMI test governing the exercise of universal insolvency jurisdiction. The paper argues for greater jurisdictional flexibility to replace the COMI test and defends this proposal against charges that it will contribute to an excess of ‘forum shopping’ and encourage a ‘race to the bottom’. The American experience with bankruptcy court competition is considered in this connection.