Journal of Law and Society

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  • Communities of scholars and communities of practice

    This article is a contribution to the occasional series dealing with a major book that has influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, Nicola Lacey, Carol J. Greenhouse, David Garland, Peter Fitzpatrick, and David Nelken.

  • Supremacy and hegemony: a reply to Palmer and Martin

    In a 2019 article in this journal, which drew on previous work, we argued by examination of a number of extremely important cases that the senior judiciary is in the process of attempting to create judicial supremacy in the UK. It is doing so, not by democratic debate, but by legal procedural innovation incomprehensible to the electorate. Invited by the journal to reply to a criticism of our argument by Dr Stephanie Palmer and Dr Stevie Martin, we have sought to defend our account of the undemocratic procedural novelty of those cases.

  • Governing canal life

    This article focuses on the governance of canals in England and Wales. The Canal & River Trust (CRT), the owner and manager of the waterways, has a statutory responsibility to grant ‘certificates’ or licences. The licence constructs a category called ‘continuous cruisers’ who live aboard their boat. Drawing on a sample of interviews with ‘continuous cruiser liveaboards’ (CCLs), we discuss how their governance by the CRT has gradually encroached on their everyday lives, leading them to reconsider their lives on the canal. We illustrate this through exploring how the CRT translated obscure legislation to make it legible through techniques of simplification, but did so in a way that had problematic effects on CCLs; and how apparently enabling and constraining regulation operates, paradoxically, in contradictory ways, both significantly affecting CCLs’ everyday lives. At heart, there is a simple story here of a nomadic way of life that is of relatively recent vintage but that is being (or perceived as being) sedentarized.

  • Capabilities, capacity, and consent: sexual intimacy in the Court of Protection

    This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

  • Unsecured lending and the indigenous economy in Australia and South Africa

    Consumer credit is closely regulated in both Australia and South Africa. Nevertheless, unsecured lending often results in financial hardship in low‐income communities. One aspect of this picture is the impact of the consumer debt burden on the Indigenous economy, which is disproportionately affected by poverty in both countries. Here we juxtapose the comparative regulatory regimes and then contextualize the law using an inter‐disciplinary account of each Indigenous economy. We find through this law‐in‐context comparison that neither Australia nor South Africa has fully resolved the problem of Indigenous financial hardship. This mutual failure is confirmed by the recent Kobelt decision of the High Court of Australia and the drastic measures enacted in the South African National Credit Amendment Act 2019. One positive lesson that South Africa provides is that accommodating the Indigenous economy in financial regulation can promote and empower that sector.

  • Mavericks or misconstruction? A reply to Campbell and Allan

    In a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.

  • A reflection on 30 years of complementary collaboration

    This article, invited by the editors, provides us with an opportunity to reflect on a scholarly collaboration of more than 30 years. Looking backwards, we believe our success has come in part from the different backgrounds that we bring to our collaboration. It also comes from the fact that neither of us at the time we met was comfortable with the scholarly models that we were intellectually programmed to pursue in our individual careers. We discuss not only what our collaboration has produced, but also the pragmatic and serendipitous elements that have gone into working out and defining our research approach, and how that approach has changed in relation to the shifting scholarly context and related changes in the global political economy, our own ambitions, and opportunities and obstacles that have at times shifted our focus. Our individual and collective career trajectories also say something about the scholarly fields in which we have operated.

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