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Consent, Legitimation, and Dysphoria

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province. This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs. This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction. Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.

Robin West

article

Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force

This paper considers ‘consent‐based’ and ‘coercion‐based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non‐violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non‐violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.

Eithne Dowds

article

Between the ‘Bank Screw’ and ‘Affording Assistance’. Rules, Standards, and the Bank Charter Act of 1844

This article explores a dilemma at the centre of the monetary order: how to counter inflation eroding the value of money and simultaneously allow bank‐created credit to meet the needs of an expanding economy. Building on recent scholarship on the history of money, the article analyses the Bank Charter Act of 1844 and the financial crisis of 1847 to reveal a response to this dilemma which continues to shape the modern context. That response relies on ex ante restrictive measures in a bid to limit the discretion of the monetary authorities and cultivate financially prudent behaviour. Yet the history of the mid‐nineteenth century exposes the challenges faced by those who enforce such rules, challenges which tie the mid‐nineteenth century to the post 2008 reforms in both the US and the Eurozone, and reveal the ongoing force of the dilemma: that simultaneous desire for both expansive credit and sound money.

Iain Frame

article

Ethno‐National Narratives of Human Rights: The Northern Ireland Policing Board

Policing in Northern Ireland has undergone one of the world's most extensive human rights reform programmes. The challenge has been whether the human rights paradigm can serve as a mutual basis for the region's sparring ethno‐national communities to deliberate over long‐contested issues of policing, accountability and justice. This article focuses on the Northern Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas that animate the Board's statutory duty to monitor policing on the basis of human rights. Marshalling qualitative data and drawing on legal anthropology, this article offers an account of the ‘social life’ of human rights and policing in the context of Northern Ireland's imperfect peace. It argues that, irrespective of legal standards, human rights oversight harbours deep sentiments and concerns, at the heart of which are communities’ own historical engagements with rights, competing legacies of the conflict and divergent understandings of contemporary policing.

Richard Martin

article

Post‐‘Brexit’ Financial Governance: Which Dispute Settlement Framework Should Be Utilised?

This contribution to the ongoing Brexit discussions addresses topical legal and regulatory issues in the post‐Brexit policy debate, especially the questions surrounding the important area of financial governance and dispute resolution. Specifically, a number of future UK/EU legal disputes with respect to financial services may emerge post‐Brexit. The article examines the UK's track record at the Court of Justice of the European Union, and discusses some likely future challenges. It then considers which institutional framework should be used for resolving disagreements. The article assesses the strengths and weaknesses of three potential models (the proposed Swiss/EU institutional framework; the EFTA ‘docking’ option; and the WTO system) and provides an original cross‐model evaluation. It also discusses the associated design challenges that EU and UK negotiators may encounter in the attempt to devise a post‐Brexit dispute settlement system.

Elizabeth Howell

legislation

Executive Environmental Law

The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.

Elizabeth Fisher

case

Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights

Providers of customised goods and services do not directly discriminate against a customer when their refusal to fulfil an order is based on their objection to the message requested by the latter and not on any protected characteristics of the person. This is the conclusion reached by the Supreme Court of the United Kingdom when faced with a claim of direct discrimination on grounds of sexual orientation and religious beliefs or political opinions contrary to two Northern Ireland Statutory Rules against a bakery which objected to incorporating the message ‘Support Gay Marriage’ into a cake. In this case comment it is argued that the Supreme Court correctly identified the crucial distinction between a message and a person for the purposes of discrimination law. Each of the two grounds of discrimination at issue is examined and an explanation for the inapplicability of a finding of discrimination on either is offered.

Eugenio Velasco Ibarra

case

A New Chapter in the Normalisation of Closed Material Procedures

This note provides an analysis of the Supreme Court decision in Haralambous, which authorised the use of closed material procedures (CMPs) in proceedings surrounding search and seizure warrants issued under the Police and Criminal Evidence Act 1984 (PACE). After presenting the facts of the case and the reasoning of the Court, the note examines the decision as an instance of CMP normalisation consistent with the model of normalisation argued for by Eva Nanopoulos in a previous MLR article. The notes goes on to make the case that Haralambous may be distinguished from previous instances of CMP normalisation on account of the Supreme Court's more open acceptance of CMPs in the decision, which signals a new chapter in CMP normalisation in the UK.

Daniella Lock

review article

Regulating Gigs

In his 2018 book Humans as a Service: The Promise and Perils of Work in the Gig Economy, Jeremias Prassl puts the question of the novelty of gig work at the very centre of his enquiry. His focus, as the subtitle indicates, lies with ‘work in the gig economy’, and his aim is to identify the potential benefits as well as the perils of such work–not only for workers but also for consumers and society at large. How could gig work be made to work for everyone, is the question that he poses: what would be the essentials of ‘a sustainable business model in which we all get to enjoy the benefits of platform innovation – without reducing humans to a service’?

Ruth Dukes

book review

Review of De Filippi, Primavera and Wright, Aaron, Blockchain and the Law: The Rule of Code, Cambridge, Mass: Harvard University Press, 2018, 312 pp, hb £28.95.

The story of blockchain technology unfurls as a narrative of opposition. In Blockchain and the Law: The Rule of Code, De Filippi and Wright – each indubitably qualified to write a serious monograph on the subject – have restored colour and complexity to the narrative. subject – have restored colour and complexity to the narrative. Theirs is not merely a story of the law; it is a story of how a series of complex devices (do and might) interact to produce a set of useful socio-economic outcomes.

Tatiana Cutts

book review

Review of Koch, Insa, Personalizing the State: An Anthropology of Law, Politics, and Welfare in Austerity Britain, Clarendon Studies in Criminology, Oxford: Oxford University Press, 2018, ix + 274 pp, £70.00.

Insa Koch’s Personalizing the State is an ethnography of state-citizen relations in ‘Park End’ (a fictional name), a council estate in the south of England. It is a book that, true to its interdisciplinary aims, spans anthropology, sociolegal studies and criminology, offering a compelling analysis bound to be of interest to scholars from each of these fields.

Zelia Gallo

book review

Review of Farrar, Salim and Krayem, Ghena, Accommodating Muslims under Common Law: A Comparative Analysis, Abingdon, Oxon: Routledge, 2017, 206 pp, hb £90.00.

This book offers a concise overview of the relationship between Muslims and the common law jurisdictions of Australia, Canada, England and Wales, and the USA. It fills a significant gap in existing literature by providing an accessible, and largely fair and accurate, analysis of the major issues arising from the interaction of Muslims with common law courts.

Reza Beheshti

book review

Review of Cameron, Lindsey, The Privatization of Peacekeeping: Exploring Limits and Responsibility under International Law, Cambridge: Cambridge University Press, 2018, 432 pp, pb £27.99.

There is no single comprehensive legal study on the law applicable to Private Military and Security Companies. Lindsey Cameron's new book is an outstanding work that steps into this space in the literature where it addresses these emergent themes under international humanitarian law, the law on the use of force, UN law and the rules on the responsibility of states and international organisations.

Saeed Bagheri

MLR Forum

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Responsibility and Reason-Responsiveness: Comments on John Gardner’s 2016 Chorley Lecture, ‘The Negligence Standard: Political, Not Metaphysical’, (2017) 80(1) MLR 1-21

Is it OK for the law to assign responsibilities to persons who lack the ability to respond to reasons? For John Gardner, the answer is 'normally, no'. Even when we do saddle those persons with responsibilities, we do so because we treat them, fictitiously, as if they are able to respond to reasons. Is that right?

Emmanuel Voyiakis

Hans Kelsen’s Judicial Decisionism versus Carl Schmitt’s Concept of the One ‘Right’ Judicial Decision: Comments on Stanley L Paulson, 'Metamorphosis in Hans Kelsen's Legal Philosophy' (2017) 80(5) MLR 860-894

Stanley Paulson's intriguing tracing of the developments of Hans Kelsen's work seems to maintain that Kelsen's decisionist stance of judicial decision-making was tamed by his constructivist 'Kantian' approach to law. While agreeing with Paulson’s jurisprudential analysis, a denial of the radicalism of Kelsen's decisionism often is the basis for the classic juxtaposition between his and Carl Schmitt's decisionist theory. But the opposite view is more appropriate: Schmitt's judge has much less room for individual political views than Kelsen's.

Jochen von Bernstorff

The Past and Future of the World’s Smallest Global Court: Comments on Tracy Robinson and Arif Bulkan, ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights’ (2017) 80(3) MLR 379–411

Robinson and Bulkan make a convincing case that the past and present of Judicial Committee of the Privy Council is of great concern for the future constitutional orders of the Caribbean, Commonwealth and United Kingdom. This note further explores the historical context to understand that future and its politics.

Coel Kirkby

A Time Traveller’s Guide to Law and Finance: Comments on Carsten Gerner-Beuerle, ‘Law and Finance in Emerging Economies: Germany and Britain 1800–1913’ (2017) 80(2) MLR 263–98

This comment connects Gerner-Beuerle's article on the evolution of company and securities law to the 'law and finance school', exploring the problems of original 'law and finance' research, Gerner-Beuerle's contribution in this direction, and suggesting how and why we may need a 'time traveller's guide' to law and finance.

Mathias Siems

Keeping It Real? Comments on Kimberlee Weatherall, ‘The Consumer as the Empirical Measure of Trade Mark Law’ (2017) 80(1) MLR 57-87

Professor Weatherall’s thought-provoking critique of the selective resistance to empiricism in trade mark law is a significant and welcome intervention. But the existence of certain structural features suggests that only a qualified turn to empiricism is possible, and the broader engagement between Law and Science holds other cautionary lessons.

Dev S Gangjee

MLR news

January Issue now up

The January Issue of the Modern Law Review is now available, with Robin West’s Chorley Lecture, ‘Consent, Legitimation, and Dysphoria’ and articles on the definition of rape, the Bank Charter Act 1844, human rights and Northern Irish policing, and post-Brexit financial governance, notes on new roles for the executive in UK environmental regulation and cases covering customised goods and services and closed material procedures, a review essay on regulating the gig economy, and book reviews covering new releases on human rights and socio-economic justice, blockchain technology, austerity Britain, life imprisonment, Muslims in common law courts, and private military and security companies.

November Issue now available

The November Issue of the Modern Law Review is now available, with articles on reason-giving in administrative law, new theories of regulation, social credit systems and the human rights of victims in domestic abuse cases, notes on voyeurism legislation and cases on vehicle insurance and green zones, and reviews of books on topics from metaethics in constitutional adjudication to civil disobedience to non-conventional copyright.

September Issue now online

The September Issue of the Modern Law Review is now available, with articles on the rescission of trusts, pensaion trusts, state use of data, planning and prototyping, and religious freedom and antidiscrimination, notes on housing reform, civil partnerships and copyrighting foods, a review essay on radical markets, and reviews of books on topics from European contract law to improperly obtained evidence.

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