Law and Society: Volume III: Legal Processes and Professional Groups within the Legal Field

The thriving and well-established field of Law and Society (also referred to as Socio-legal Studies) has diverse methodological influences; it draws on social-scientific and arts-based methods. The approach of scholars researching and teaching in the field often crosses disciplinary borders, but, broadly speaking, Law and Society scholarship goes behind formalism to investigate how and why law operates, or does not operate as intended, in society. By exploring law’s connections with broader social and political forces—both domestic and international—scholars gain valuable perspectives on ideology, culture, identity, and social life. Law and Society scholarship considers both the law in contexts, as well as contexts in law.
Law and Society flourishes today, perhaps as never before. Academic thinkers toil both on the mundane and the local, as well as the global, making major advances in the ways in which we think both about law and society. Especially over the last four decades, scholarly output has rapidly burgeoned, and this new title from Routledge’s acclaimed Critical Concepts in Law series answers the need for an authoritative reference collection to help users make sense of the daunting quantity of serious research and thinking.
Edited by the leading scholars in the field, Law and Society brings together in four volumes the vital classic and contemporary contributions. Volume I is dedicated to historical antecedents and precursors. The second volume covers methodologies and crucial themes. The third volume assembles key works on legal processes and professional groups, while the final volume of the collection focuses on substantive areas. Together, the volumes provide a one-stop ‘mini library’ enabling all interested researchers, teachers, and students to explore the origins of this thriving sub discipline, and to gain a thorough understanding of where it is today.

Inter-Agency Evidence Sharing in Competition Law Enforcement

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/ evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.

What happens in court?:The development of understanding of the legal system in a sample of Irish children and adults

A total sample of three hundred and sixty (N=360) Irish children and adults, drawn from nine age groups, were administered the specially designed Legal Knowledge and Perception of Court Interview Schedule. Analyses of variance revealed a main effect for age of participant. Participants demonstrated increasing knowledge of the legal system with increasing age. The findings of the present study suggest inter alia that Irish children, particularly those under nine years of age, do not possess sufficient understanding of the legal system to enable them to participate as effectively as they might as witnesses. The potential for developing a systematic programme of preparing child witnesses for their involvement in the legal process is discussed.

An Enchanted Tool? Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters

Despite previous attempts at codification of international law regarding international responses to natural and human-made disasters, there is currently no binding international legal framework to regulate the provision of humanitarian assistance outside armed conflicts. Nevertheless, since the International Law Commission (ILC) included the protection of persons in the event of disasters on its programme of work in 2006, it has provisionally adopted eleven draft articles that have the potential to create binding obligations on states and humanitarian actors in disaster settings. Draft articles adopted include the definition of ‘a disaster’, the relationship of the draft articles to the international humanitarian law of armed conflict, recognition of the inherent dignity of the human person, and the duty of international cooperation. However, the final form of the draft articles has not been agreed. The Codification Division of the UN Office of Legal Affairs has proposed a framework convention format, which has seen support in the ILC and the UN General Assembly Sixth Committee. The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. The article therefore provides an overview of the international legal regulation of humanitarian assistance following natural and human-made disasters, and the ILC’s work to date on the topic. It then examines two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee. Drawing on the UN Guiding Principles on Internal Displacement, the development and implications of binding and non-binding international texts are examined, followed by an analysis of the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work.

Clarifying the acquis humanitaire: a transnational legal perspective on the internalization of humanitarian norms

Although the international obligations and institutional frameworks for disaster response are not yet settled, as evidenced by the International Law Commission’s work on the protection of persons in the event of disasters and the on-going promotion of disaster laws by the Red Cross Movement; the diverse source and nature of such initiatives suggests that the international community is engaged in a process of norm creation, elaboration and interpretation reflecting a desire for legal clarity in humanitarian operations. Situated within the framework of transnational law, this paper argues that an acquis humanitaire, based on the principle of humanity, encapsulates the evolving body of law and practice specifically relating to the protection of persons in times of humanitarian crisis in both armed conflicts and natural or human-made disasters. Reflecting the non-traditional, non-statist, dynamic and normative basis of transnational legal process, as elaborated by Harold Koh, the constant flow of ideas and principles between the national, regional and international spheres provides an analytical framework for the on-going transnational dialogues on the social, political and legal internalization of humanitarian norms. Drawing on the internalization of humanitarian norms within the United Kingdom, this paper concludes that as the international community examines the codification of a universal legal framework for the protection of persons in the event of disasters it is necessary to understand the transnational process of interpretation and internalization of humanitarian norms, and how this may vary across different regions and countries.

Evaluating conditions for transboundary marine spatial planning: Challenges and opportunities on the island of Ireland

Transboundary cooperation is viewed as an essential element of Marine Spatial Planning (MSP). While much of the MSP literature focuses on the need for, and benefits of, transboundary MSP, this paper explores the political and institutional factors that may facilitate the effective transition to such an approach. Drawing on transboundary planning theory and practice, key contextual factors that are likely to expedite the transition to transboundary MSP are reviewed. These include: policy convergence in neighbouring jurisdictions; prior experience of transboundary planning; and good working relations amongst key actors. Based on this review, an assessment of the conditions for transboundary MSP in the adjoining waters of Northern Ireland and the Republic of Ireland is undertaken. A number of recommendations are then advanced for transboundary MSP on the island of Ireland, including, the need to address the role of formal transboundary institutions and the lack of an agreed legal maritime boundary. The paper concludes with some commentary on the political realities of implementing transboundary MSP.

ARTICLE: Anarchy and International Law: The Approaches of Hedley Bull and Noam Chomsky

Are anarchy and the law antithetical? Not so, as for more than 350 years international law has governed a legal order based on anarchy; wherein no central authority exists and law functions not on the basis of coercion but on cooperation whereby States must agree to each specific laws before it is bound by its obligations. This article contemplates two manners in which an anarchist might consider international law interesting: first, as a legal system which governs an anarchical society as described by Hedley Bull in line with the English School of International Relations; and second, as a manifestation of a State system which, though illegitimate can be utilized, as Noam Chomsky does, for tactical reasons to demonstrate its inconsistencies and thus weakening the system with the ultimate aim being its implosion

The legal needs of children and young people in Northern Ireland: the views of young people and adult stakeholders

This research was conducted on behalf of the Department of Justice to explore the following issues: the nature and extent of the legal needs of children and young people; the extent to which these legal needs are being met; barriers to children and young people accessing legal advice, information and representation; potential solutions to these barriers; and potential future mechanisms for meeting identified legal needs of children and young people.

Getting Away With It:Corruption, Moral Indignation and the Limits of Legal Accountability

In this paper we address the idea of ‘legal but corrupt’ through a discussion of two cases: abuse scandals in the Irish Catholic Church and the financial services industry in the wake of the Global Financial Crisis. We identify two important dynamics that generated the scandals: that they were driven by strong and stable groups existing within a peculiar kind of ‘accountability space’ that we describe as ‘monastic’ and that those groups persisted with tacit or explicit support from the state. ‘Legal but corrupt’ is, we argue, a matter of insider incomprehension sustained by the ceding of sovereignty over some aspect of social or economic life.

Leniency (Amnesty) Plus: A Building Block or a Trojan Horse?

Leniency (amnesty) plus is one of the tools used in the fight against anticompetitive agreements. It allows a cartelist who did not manage to secure complete immunity under general leniency, to secure an additional reduction of sanctions in exchange for cooperation with the authorities with respect to operation of another prohibited agreement on an unrelated market. The instrument was developed in the United States and, in recent years, it was introduced in a number of jurisdictions. This article contextualises the operation of and rationale behind leniency plus, forewarning about its potential procollusive effects and the possibility of its strategic (mis)use by cartelists. It discusses theoretical, moral, and systemic (deterrence-related) problems surrounding this tool. It also provides a comparison of leniency plus in eleven jurisdictions, identifying common design flaws. This piece argues that leniency plus tends to be a problematic and poorly transplanted US legal innovation. Policy-makers considering its introduction should analyse it in light of institutional limits and local realities. Some of the regimes which already introduced it would be better off abandoning it.

The Double Life of Duke of Somerset v Cookson, or a Legal Excavation of the Corbridge Lanx

Duke of Somerset v Cookson (1735) occupies an important place in English legal history as a leading authority for Chancery jurisdiction to order specific delivery of movable property where an award of damages would be inadequate. The property at issue was the Corbridge lanx, now in the British Museum, but then claimed as treasure trove by the duke of Somerset as lord of the manor of Corbridge. This paper re-examines Cookson as the first reported English decision relating to treasure trove, and uses later treasure trove claims by the duke of Somerset's successors to the manor of Corbridge, the dukes of Northumberland, to shed fresh light on the 1735 decision and on the development of treasure trove practice from the eighteenth century onwards.