This article develops a general critique of the economic approach to environmental regulation, drawing on the insights of systems theory. It highlights, first, the problematic of subjugating the regulatory system to a single purpose – which in the context of environmental economics is interpreted as the utilitarian maximization of collective welfare. Second, it questions the teleological pretence of the regulatory project as it is configured in the economic literature. It highlights in this context the problem of trans-systemic incompatibilities, which impede the incorporation of economic ideas into the systems of law and politics. Environmental economics in both its normative and sociopolitical strands, fails to provide a convincing response to this dilemma. The article discusses two examples of the reconstruction of economic ideas within the legal and political domains, drawing on the EU and US regulatory experience. This twofold critique of the economic approach can be extended, it is argued, to every regulatory project with far-reaching teleological ambitions. The article applies this critique to some alternative regulatory visions, such as self-regulation, reflexive law and responsive regulation, noting in this context the limitations of systems theory itself. It concludes with a discussion of the role of intuition in regulatory decision-making.

The article examines how the academic genre called the ‘anthropology of law’ or ‘legal anthropology’ developed under the disciplinary constraints of both the social and legal sciences. It first discusses its historical development and different trajectories and engages in a comparative analysis of similarities and differences between anthropologists, lawyers and sociologists of law. Finally, by looking at the ways in which cognitive and normative categories such as ‘legal anthropology’ are reproduced and changed through time, the article in itself is a legal anthropological exercise. The author concludes that there are hardly any identity markers left that would demarcate legal anthropology in a mutually exclusive way from other (sub)disciplines. The distinctiveness of legal anthropology rather lies in an accumulation of features, which make (legal) anthropology what it is, even if many features may be shared with other disciplines.

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.

This paper examines women’s entry and advancement within Québec’s, civil law tradition of a dual system of notaires and avocats in law practice. The two arms of the profession have developed along exclusive legal jurisdictions codified through law, contrasting professional structures, and different styles of legal practice. Yet, they share a common foundation through law school and professional training and their respective practices of law occasionally overlap and conflict in the competition for clientele, services and professional status. Women’s representation in Québec law practice has risen to nearly fifty percent and their entry to law in large numbers coincides with the emergence of exclusionary processes within and across the professional divide. Bourdieu’s theory of cultural capital provides new insight to gendered career dynamics in law practice, specifically an understanding of cultural repertoires of resources mobilised in successful careers, resources that are also at the centre of disputes over the professional status and legal jurisdictions between notaires and avocats. The analysis demonstrates that women and men within these two professional groups are not only equipped with differential stocks of capital, but that the conversion rates also differ. Particularly among the avocats, men receive greater exchange on their investments in human and social capitals and their cultivated ‘habitus’ also better enables men to garner enhanced job rewards.

This essay argues against the two pillars of current research on law and globalisation, from the perspective of legal theory and political philosophy: first, the distinction between ‘well-ordered’ and ‘not so well-ordered’ societies; second, the sociological model of the subject as pacified, fearful and isolated (to sum up, in harmony). It is argued that mainstream legal theory and political philosophy merely reflects the actual rules of the game of competition, dispute and conflict. In contrast, this essay takes sides with the anthropological and philosophical tradition that conceives the subject as antagonistic and in state of lack, profoundly concerned with the other, whom she imitates and whose standpoint she must be able to share if she is to make sense of the world. Furthermore, it is argued that transitivity or imitation lies at the very origin of conflict and dispute; lack and antagonism remain thus at the core of society, in spite of the surface appearance of harmony that characterises post-modern societies. Because of this, any general theory of law and society that wishes to be relevant at the time of globalisation must make the experience of antagonism and violence, motivated by imitation and envy, and its containment, its object of study. To do this, it must abandon the dualist conception of subjects and societies expressed in the distinction between ‘well-ordered’ (more violent) and ‘not-so-well-ordered’ (less violent) societies that has informed its investigation to this day, in order to declare in the most general terms a critique of violence from the standpoint of the victim, as of a piece with its demand for global social and political justice.

This article aims to assess the work of the courts as navigators when law meets culture in Turkey, where the culture of the official legal system and the culture of the people do not always accord. First the conceptual framework used is analysed, then readers are introduced to the peculiarities of Turkish law and socioculture, and finally, the work of the judge is considered. Selected cases are in three groups: cases where courts face culture contrary to the vision embodied in the official legal framework; then, where courts face culture which can be catered for within the legal framework, though not in keeping with it, and now need revision because of the aspired European Union membership; and finally, where courts face demands of further Europeanisation and human rights law from the outside, which may or may not fit in the framework or the traditional values of the people.

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.

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.

World War II genocide in Germany, the Rwanda genocide in the early 1990s and the Darfur genocide today are visceral reminders of the devastation and senselessness in the breakdown of human order, a poignant but sad insight into the nature of man and politics. Yet the international community, and by extension the United Nations (UN), have shown a remarkable reluctance to address rape and other forms of gender violence perpetrated during militarised conflicts. Given the psychological toll and devastating effect of rape and the growing number of conflicts, this effort does not speak well to the UN’s commitment to problems that destabilise international peace. It does however raise concerns in the minds of those who see the UN as cherrypicking which conflicts to address while sidestepping others until it is too late. With a view to the Allies’ response to genocide during World War II, this article argues that the realist analytical framework of world politics provides the most plausible basis for explaining variations in international response in militarised conflicts such as Rwanda and Darfur. We present testable hypotheses to conclude that while rape in itself may not be the sole trigger for interventions, states with unstable regimes or sovereign capacity whose government has been deposed are more likely to be the object for interventions or held accountable than those with otherwise stable governments who benefit from the support of a hegemonic power. To victims of crimes of rape caught in militarised conflicts, and to whom justice may come only after a perpetrator regime has been deposed, the conclusion that the decision to intervene is predicated more on political might than justice is disquieting.

This paper sets out the work of Parfit, in terms of Hume and Locke, in terms of the treatment of the person. It considers how ontological status is often a chimerical notion. It sets out the non-bindingness of promises thesis and develops this in terms of intentional action to show how intentional action itself may be impossible. The paper also raises questions about how we define groups, such as criminal groups, in terms of intentionality.

Formality and informality in housing is a continuum, rather than an either/or proposition, with many examples along the continuum. This paper focuses on three examples of housing solutions – Barbados tenantries, Mexican ejidos and Saint Lucia family land – which are situated at the fulcrum of the continuum, at the point where it tips from formality to informality, and attempts to unravel their formal and informal elements. While the starting hypothesis was that each is informal from a public law point of view but formal from a private law one, closer examination suggests that their private law aspects are more nuanced than first appeared.

This paper offers a theory through which, we argue, we can more appropriately evaluate and potentially improve the moral quality of work. There are three components to such a theory. The first two components, which we argue need to be integrated, are normative resources that appeal to two different behavioural capacities: first, the articulation of rules, appealing to the capacity of agents to deliberate about what they ought to do; second, the introduction of forms of institutional design, appealing to the capacity of agents to acquire habits and dispositions in certain social environments. The third and most important component is that of the infinity of suffering and vulnerability. This component has both a negative and a positive aspect. On the negative side, the component is designed to assist us in recognising the inevitable limitations of either normative resource or indeed any one integrated totality of normative resources (i.e., both rules and forms of institutional design). Those limitations consist in the narrowing of the domain of objects of value towards which workers are guided or oriented by either or both normative resources. On the positive side, the component encourages us to construct alternative normative resources on the basis of alternative forms of representation of suffering and vulnerability. In that respect, the specific policy proposal of this paper is that of the establishment of Community Forums, which are designed to offer a framework thanks to which some of the particularities of suffering and vulnerability within a specific community can be recognised and communicated in a multiplicity of ways, thereafter forming a resource for the development of policy with respect to the challenges facing that specific community. The second part of the paper applies this theory to consider the value and limitations of second-generation reforms in international economic institutions. The third part of the paper further considers the values and limitations of reforms for access to public goods and services in Nigeria.

My title ‘The Struggle for Law’ is that of a book by the nineteenth-century German jurist Rudolf von Jhering (1915). In fact a better translation of Jhering’s original German title (Der Kampf ums Recht) might be ‘the struggle around law’ or ‘the battle for rights’. He argued that citizens owe a moral duty to themselves and their society to assert legal rights vigorously. But law itself is above the fray, not subservient to their conflicting interests. So the struggle for law is not to control it but to invigorate it – to be involved in the legal order, an active citizen living under law. Jhering presupposed a cultural unity – ‘our whole culture’ (Jhering, 1913, pp. 59, 62). Given this unity, law can respond not only to citizens’ claims but to their feelings – feelings that are understandable in the shared culture law inhabits.

Personal Action Plans (PAPs) have been used to encourage client self-management within healthcare services, and are a novel innovation within legal services. This paper examines the use of PAPs by publicly funded family lawyers in England and Wales. It was intended that PAPs were written collaboratively between lawyers and clients in order to assist clients to clarify and resolve issues independently, and aid referrals to other service providers. Whereas self-management initiatives work best when service providers take a client-aligned approach, our research demonstrates that the PAPs were used as a means of managing clients’ expectations. We conclude by suggesting that while PAPs and other forms of self-management tools may work well in healthcare, they have limited potential in the provision of legal services for family law clients.

Legislators around the world are grappling with the question of whether or not the criminal law should be deployed in order to punish HIV transmission that is the result of voluntary sexual encounters between competent, consenting adults. A few years ago, when I was working in South Africa, that country’s Law Reform Commission proposed to declare HIV transmissions that are the result of voluntary sexual encounters among competent consenting adults a criminal offence that ought to fall under the category of rape (Schüklenk, 2003). Rape and voluntariness do not go too well together, so – not being a lawyer – I was surprised about the seemingly otherworldly machinations of legal minds in the context of HIV/AIDS. Matthew Weait points out in his book Intimacy and Responsibility: The Criminalisation of HIV Transmission that many liberal democracies have made HIV transmission a criminal offence, among these Canada, Sweden, Germany, Norway, Denmark, the Netherlands, the UK and many others. In most countries, HIV infected people who demonstrably knew about their infection have been successfully prosecuted for transmitting HIV to their sexual partners.

Issues of what personal autonomy and identity means are investigated in the context of the European Court of Human Rights’ development of Article 8’s right to respect one’s private life into a right to personal autonomy, identity and integrity with particular reference to French anonymous birthing as explored by that court in Odièvre v France and feminist literature on mothering and autonomy. Although much critiqued by feminists, personal autonomy has been reconceptualised to mean something of worth to women. Yet, this version of autonomy can diverge into two directions in terms of individual identity as evidenced in Odièvre and in feminist literature: self-determination or self-realisation/authenticity. Conclusions are reached that making autonomy dependent on claims to ‘authenticity’ restricts personal freedom and thus ultimately identity.

In Orientalism, Edward Said’s seminal critique of Western discourse on the Arab and Islamic world, Said begins with an epigram from Karl Marx: ’They cannot represent themselves; they must be represented‘ (Said, 1979, p. xiii, quoting Karl Marx, The Eighteenth Brumaire of Louis Bonaparte). Said then argues that Marx’s statement captures a basic reality about Western representations of ’Oriental‘ societies, which is that they often rest on a pattern of cultural hegemony. The dominance of European colonial powers, primarily Great Britain and France, over their subjugated populations is what allowed the latter to be depicted in a way that reinforced ‘the idea of European [superiority] in comparison with. . .non-European peoples and cultures’ (p. 7). For example, in Gustave Flaubert’s popular novels, ‘Flaubert’s encounter with an Egyptian courtesan produced a. . .model of the Oriental woman. . .[who] never spoke of herself. . .[and] never represented her emotions, presence or history. He spoke for and represented her. . .telling his readers in what way she was typically Oriental’ (p. 6, emphasis original). Moreover, Flaubert’s superiority in relation to her ‘was not an isolated instance. It fairly stands for the pattern of relative strength between East and West, and the discourse about the Orient that it enabled’ (p. 6).