Journal of Law and Society
- Publication date:
- 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.
- 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.
- Sentencing: A Social Process. By Cyrus Tata, Cham: Palgrave Pivot, 2020, 190 pp., £44.99
- 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.
- 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.
- SLSA E‐Newsletter
- 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.
- Table of Contents
- SLSA E‐Newsletter
- 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.
- 11 September 2001, Counter‐terrorism, and the Human Rights Act
The attacks of 11 September 2001 and the reaction to them has been the gravest challenge to date to the Human Rights Act 1998. The Antiterrorism, Crime and Security Act 2001 has expanded the remit of the Terrorism Act 2000 and there has been a new concentration on antiterrorism by government. This...
- A Fragment on Cnutism with Brief Divagations on the Philosophy of the Near Miss
This fragment is taken, mid‐sentence as it were, from a longer discourse. It is plucked in process from a discussion of friendship for ideas. It is part of a longer journey through the annals of amity. The fragment also examines a fragment, a gloss on a text, a marginal comment, a handwritten note, ...
- A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew
This paper questions the claim that British militarized security strategy in Northern Ireland offers a model for the global ‘war against terrorism’ by exploring the critically important (though neglected) ‘Falls Curfew’ episode. Part one explores the relationship between law, legitimacy, and the...
- 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 ...
- A Socio‐legal Analysis of an Actor‐world: The Case of Carbon Trading and the Clean Development Mechanism
This article reviews the Kyoto Protocol's Clean Development Mechanism (CDM), and analyses how it reflects a particular international vision of climate change and its solutions. It discusses how the expectations this approach embeds have become challenged by practice, and practitioners, and how...
- A Vindication of the Rights of Psychiatric Patients
- Accountability in the Regulatory State
Accountability has long been both a key theme and a key problem in constitutional scholarship. The centrality of the accountability debates in contemporary political and legal discourse is a product of the difficulty of balancing the autonomy given to those exercising public power with appropriate...
- Adjudicating Fear of Witchcraft Claims in Refugee Law
In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues ...
- Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law
This article contrasts policy advocacy of alternative dispute resolution, and demonization of lawyers and court proceedings in family law, with research evidence that calls those policy positions into question. The research demonstrates, broadly, that restrictions on the availability of publicly...
- After Dark and Out in the Cold: Part‐time Law Students and the Myth of ‘Equivalency’
This paper presents the findings of the first major research study of part‐time law students. It argues that many face multiple disadvantages, largely unrecognized by universities, whose emphasis on the formal equivalency of part‐time and full‐time law degrees ignores the distinctive backgrounds...