The Review

January 2020 Issue

articles

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

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

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

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

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

cases

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

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 reviews

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

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

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

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

Forum responses

The Review

Published January 2020
Frequency Bi-Monthly
Volume 83
Issue 1
Print ISSN 0026-7961
Online ISSN 1468-2230

Virtual Issues

Virtual Issues contain curated content drawn from the MLR

GO TO VIRTUAL ISSUES