The Illusions of Post-Feminism, Ghosts of Gender and the Discourses of Law

This article seeks to consider evidence of post-feminist and "post-equality" gender narratives contained in the discourses of law in the UK and European contexts. Analysis of perennial ghosts of gender in the areas of gender-neutrality in policy, legislative regulation of sexual crimes, and the adjudication of gendered issues by judges will be undertaken in order to renew and reinstate the focus of the legal feminist project and advocate for continued scrutiny in these three practical areas.

Thanking the Greeks: The Crisis of the Rule of Law in EU Enlargement Regulation

This paper showcases the weaknesses of EU enlargement law and demonstrates how one Member State – namely, Greece – is notable for abusing this weakness, for harming the candidate countries, the EU, and the institutions alike, for stripping the EU position of its predictability, and for undermining the EU Commission’s efforts. Accordingly, Greece has severely incapacitated the key procedural rule of law component of the EU’s enlargement regulation, turning it into a randomised political game and ignoring any long-term goals of stability, prosperity, and peace that the process is to stand for. Following a walk through Greece’s engagement throughout a number of enlargement rounds, the paper concludes that the duty of loyalty – which is presumably able to discipline Member States that undermine the common effort – should find a new meaning in the context of EU enlargement.

ARTICLE: On the Curious Disappearance of Human Servitude from General International Law

The following study considers the fragmentation of law which occurred in 1956 with regard to the law on servitude. As States were unwilling to go as far as the Universal Declaration on Human in establishing that "no one shall be held in [...] servitude", the negotiators of the 1956 Supplementary Conventions moved to expunge the very term 'servitude' from the text and to replace it with the phrase 'institutions and practices similar to slavery' which could then be abolished 'progressively and as soon as possible'. The negotiation history of the 1956 Convention clear demonstrate that the Universal Declaration on Human was the elephant in the room and that it ultimately lead to a fragmentation of the law as between general international law manifest in the 1956 Supplementary Convention on the one hand and international human rights law on the other. It is for this reason that, for instance the 2001 UN and 2005 Council of Europe trafficking conventions mention both 'practices similar to slavery' and 'servitude' as types of human exploitation to be suppressed in their definition of 'trafficking in persons'.

Doping, sport and the law: time for repeal of prohibition?

This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes’ health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport’s various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler’s theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon’s and Simon’s work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

A Case for Humanity in the Law of Rape.

One of Irigaray’s most insistent criticisms of the operation of patriarchal law is its overwhelming focus on the protection of property at the expense of law that regulates relations between and amongst persons. This paper argues, with reference to Irigaray’s work, that the conceptual change involved in such a reorientation of law’s focus has important implications for the legal perception of the harm of rape and woman’s sexuality. The possessive paradigm operates in the law of rape by disassociating the harm of rape from its psychic and subjective impact and encouraging the ‘simple’rape/ ‘real’ rape dichotomy. In returning subjectivity to woman herself we can begin to see perhaps how the crime of rape involves a harm to woman that affects the whole of her being, and to be. Such a reading allows the law to perhaps move away from understanding rape as a violation of undifferentiated bodies to a violation of the innate ‘virginity’ of woman.

The Paradox of Performative Immediacy: Law, Music, Improvisation

In a 1999 essay, J.M. Balkin and Sanford Levinson called for law to be considered as a performing art. Against or perhaps going further than Balkin and Levinson, this commentary claims that while engagement with performance practices in the arts, such as music, is of the utmost value to law and legal theory, we must not take for granted what it means to ‘‘perform’’. Uniting Jacques Derrida’s la Villette performance (with jazz legend, Ornette Coleman) with his writings on performativity in law, this commentary looks to the musical practice of improvisation to trouble the notion of performance as immediate and singular and to question taken for granted distinctions between text and performance, writing and music, composition and improvisation. The consequence of this refined understanding of the performative on legal theory and the actual practice of law is a reconceptualization of law as improvisation, that is, both singular and general, pre-existent and immediate, and a refocusing on the creativity that lies at the heart of law’s conservativism.

Law's Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining

Law's Ethical, Global and Theoretical Contexts examines William Twining's principal contributions to law and jurisprudence in the context of three issues which will receive significant scholarly attention over the coming decades. Part I explores human rights, including torture, the role of evidence in human rights cases, the emerging discourse on 'traditional values', the relevance of 'Southern voices' to human rights debates, and the relationship between human rights and peace agreements. Part II assesses the impact of globalization through the lenses of sociology and comparative constitutionalism, and features an analysis of the development of pluralistic ideas of law in the context of privatization. Finally, Part III addresses issues of legal theory, including whether global legal pluralism needs a concept of law, the importance of context in legal interpretation, the effect of increasing digitalization on legal theory, and the utility of feminist and postmodern approaches to globalization and legal theory.

Why do national court judges refer to human rights treaties?: A comparative international law analysis of CEDAW

An analysis was conducted of 325 national judicial decisions across 55 jurisdictions, in which CEDAW was referred to in the reported decision. Despite predictions to the contrary based on previous scholarship, significant variations between courts in their interpretation of CEDAW occurred relatively infrequently, courts referred relatively seldom to interpretations of CEDAW by other national courts, and there was little evidence of transnational dialogic approaches to judging. An analysis of these results suggests that domestic judges invoking CEDAW act primarily as domestic actors who use international law in order to advance domestic goals, rather than acting primarily as agents of the international community in applying CEDAW domestically, or contributing to the transnational shaping of international law to suit national interests. The Article suggests an understanding of the domestic implementation of a human rights treaty as not only law, but a unique kind of law that performs a particular function, in light of its quality as something akin to hard and soft law simultaneously.