Shared authority: courts and legislatures in legal theory

This book advances a fresh philosophical account of the relationship between the legislature and courts, opposing the common conception of law, in which it is legislatures that primarily create the law, and courts that primarily apply it. This conception has eclectic affinities with legal positivism, and although it may have been a helpful intellectual tool in the past, it now increasingly generates more problems than it solves. For this reason, the author argues, legal philosophers are better off abandoning it. At the same time they are asked to dismantle the philosophical and doctrinal infrastructure that has been based on it and which has been hitherto largely unquestioned. In its place the book offers an alternative framework for understanding the role of courts and the legislature; a framework which is distinctly anti-positivist and which builds on Ronald Dworkin’s interpretive theory of law. But, contrary to Dworkin, it insists that legal duty is sensitive to the position one occupies in the project of governing; legal interpretation is not the solitary task of one super-judge, but a collaborative task structured by principles of institutional morality such as separation of powers which impose a moral duty on participants to respect each other's contributions. Moreover this collaborative task will often involve citizens taking an active role in their interaction with the law.

Personal status laws in Morocco and Tunisia: A comparative exploration of the possibilities for equality-enhancing reform in Bangladesh

This paper focuses on successful reform strategies invoked in parts of the Muslim world to address issues of gender inequality in the context of Islamic personal law. It traces the development of personal status laws in Tunisia and Morocco, exploring the models they offer in initiating equality-enhancing reforms in Bangladesh, where a secular and equality-based reform approach conflicts with Islamic-based conservatism. Recent landmark family law reforms in Morocco show the possibility of achieving ‘women-friendly’ reforms within an Islamic legal framework. Moreover, the Tunisian Personal Status Code, with its successive reforms, shows that a gender equality-based model of personal law can be successfully integrated into the Muslim way of life. This study examines the response of Muslim societies to equality-based reforms and differences in approach in initiating them. The paper maps these sometimes competing approaches, locating them within contemporary feminist debates related to gender equality in the East and West.

Lesbian and gay parents and reproductive technologies: The 2008 Australian and UK reforms

This article analyses the laws that govern the allocation of parental responsibility for children conceived through non-coital reproduction by lesbians and gay men in England/Wales and Australia. In 2008 both jurisdictions introduced important reforms affecting this area of law, providing new options for the legal recognition of parent–child relationships in lesbian and gay households. However, the practical usefulness or effectiveness of the reforms may be limited by the excessive complexity or obscurity of the system of parental responsibility thus introduced. Furthermore, the reform Acts encourage the formation of some family structures—especially homonuclear families—while discouraging the emergence of more imaginative and cooperative parenting configurations at odds with heteronormative parenting scripts. Only through a clearer commitment to intentionality as a ground for the allocation of parental responsibility will future reform be likely to adequately protect the interests of lesbian and gay parents and their children.

Law and the power of feminism: how marriage lost its power to oppress women

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women’s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including the ‘sexual revolution’ of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ‘liberation’ than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women’s problems.

Online data processing consent under EU law: a theoretical framework and empirical evidence from the UK

This article analyses the results of an empirical study on the 200 most popular UK-based websites in various sectors of e-commerce services. The study provides empirical evidence on unlawful processing of personal data. It comprises a survey on the methods used to seek and obtain consent to process personal data for direct marketing and advertisement, and a test on the frequency of unsolicited commercial emails (UCE) received by customers as a consequence of their registration and submission of personal information to a website. Part One of the article presents a conceptual and normative account of data protection, with a discussion of the ethical values on which EU data protection law is grounded and an outline of the elements that must be in place to seek and obtain valid consent to process personal data. Part Two discusses the outcomes of the empirical study, which unveils a significant departure between EU legal theory and practice in data protection. Although a wide majority of the websites in the sample (69%) has in place a system to ask separate consent for engaging in marketing activities, it is only 16.2% of them that obtain a consent which is valid under the standards set by EU law. The test with UCE shows that only one out of three websites (30.5%) respects the will of the data subject not to receive commercial communications. It also shows that, when submitting personal data in online transactions, there is a high probability (50%) of incurring in a website that will ignore the refusal of consent and will send UCE. The article concludes that there is severe lack of compliance of UK online service providers with essential requirements of data protection law. In this respect, it suggests that there is inappropriate standard of implementation, information and supervision by the UK authorities, especially in light of the clarifications provided at EU level.

Field manual 3-24 and the heritage of counterinsurgency theory

The Counterinsurgency Manual FM 3-24 has been accused of being over-dependent on the counterinsurgency 'classics' Galula and Thompson. But comparison reveals that it is different in spirit. Galula and Thompson seek practical control; the Manual seeks to build 'legitimacy'. Its concept of legitimacy is superficially Weberian, but owes more to the writings of the American Max Manwaring. The Manual presupposes that a rights-based legal order can (other things being equal) be made to be cross-culturally attractive; 'effective governance' by itself can build legitimacy. The fusion of its methods with an ideology creates unrealistic criteria for success. Its weaknesses suggest a level of incapacity to think politically that will, in time, result in further failures.

Why UK public lawyers need to be legal and political theorists

My aim in this article is to encourage UK public lawyers to engage with contemporary debates in legal, political and constitutional theory. My argument is motivated by three related concerns. First, there is an extricable link between these disciplines: behind every proposition of public law can be found a theory of law, govenment, the state and so on; secondly, public lawyers have historically neglected or fudged theory in their work; finally, a growing number of public lawyers are now using cutting-edge legal and political theories to fashion radical new understandings of the British constitution: other (more conservative-minded) public lawyers have no option, I argue, but to answer these new challenges. I illustrate my argument with reference to debates about Parliamentary sovereignty, the constitutional foundations of judicial review, political constitutionalism, and judicial deference.

Recognition of "difference" in Shari'a: a feminist scrutiny through the lens of substantive equality

The paper looks at the works of notable Islamic feminists to examine whether Islam can be reconciled with a substantive approach to gender equality. Located within contemporary feminist debates related to gender equality, it considers the Qur’anic verses related to two controversial areas of Shari’a law, namely, duty of obedience and polygamy, to explore how Islamic scriptures perceive ‘difference’ and its implications for substantive equality-based legal reforms in a Muslim society.

Feminist approaches to sexuality and law scholarship

Sexuality and Law scholarship is a new and developing field but, like most legal scholarship, it is dominated by masculine concerns and methodologies. This article explains why research that ignores feminist concerns and methodologies will be incomplete and inaccurate, and suggests questions that should be asked of resources to ensure a complete and accurate coverage of the topic.