A new wave of legal scholarship has challenged the dominant neoclassical account of price formation, demonstrating that prices are not formed according to its prescripts and do not perform the task of economic coordination in line with its axioms. As opposed to emerging from voluntary exchanges between private actors, prices on this alternative reading are the products of processes of political and legal ordering that constrain the choices and opportunities of some social groups as they enable and empower others. Prices, legal scholars insist, are 'legally engineered'. But what possibilities emerge from such a reframing? Could legal analysis be used to model and predict the behaviour of prices in the political economy? And would doing so give us any inroads into making the prices that seem to 'inhere' in the objects around us any more just? In this article, I build the case for the development of a new research programme that investigates the role of law in processes of price formation. I also problematize the engineering metaphor that stands at the centre of contemporary legal scholarship on prices. Drawing on the traditions of Old Institutionalist Economics (OIE), Legal Realism, and Marxist Economics, I argue that prices are not produced by the state mechanistically commanding the political economy through its interventions and legal frameworks, but emerge from the deeper, historically conditioned structure of legal rights in society. Highlighting that capitalism must be understood as both a juridical order and as a totality, I argue that in order to develop a legal theory of price with explanatory power, we first need to understand how the 'system of mutual coercion' that OIE and Realist scholars show to be central to the formation of market prices operates on the global scale.
Scholarship and even political and policy discourse regarding migration and borders tend to focus on the migration of natural persons, and (inter)national borders as the domain of the nation-state, conceived of as an expression of the latter's sovereignty. In liberal theory, nation-state borders are critical legal and political infrastructure of collective self-determination, bulwarks for democratic self-rule. This Article is a provocation to consider migration, borders, and sovereignty from a different vantage-one that centers the migration of transnational commercial corporations, and their capacity to constitute, govern and wield borders and migration to advance the will of their constituencies . I focus in particular on corporations as migrants that are uniquely threatening to democratic self-rule generally, and especially to the self-determination of (post)colonial nation-states.
How can the development of public international law work in a decentralised and pluralist international society, where actors and institutions increasingly and deeply disagree on key questions? The paper identifies two concepts for discussing its viability: clarity, about the current law and the claim for change, and coherence of that claim with the existing law, both substantively and in relation to relevant procedures and institutions. After explaining how these concepts operate in international law more generally, the paper considers their application to the case study of compensation within the particular institutional setting of the United Nations International Law Commission.
A natural response to those who commit offence in highly disordered mental states is to consider that they did not know what they were doing at the time. This common response is compatible with the theoretical idea that in states of sane or insane automatism, self-awareness is lost, and our agential connection to our capacities breaks down. It is also consistent with a philosophically coherent grounding for exculpation in such cases, one based on the absence of non-observational knowledge, and on the defeat of agency that flows therefrom. The theoretical good sense in our natural response to affected agents (they did not know what they were doing!) reveals problems in the current law of automatism, and illuminates a more apt defence.
The liberal democratic ideal that public law can keep the exercise of public power within reviewable bounds and that administrative powers are necessarily subordinated to the law has been, in the EU and elsewhere, an important condition supporting the legal and political legitimacy of public power-an antidote to the authoritarian tendencies of administrations. In the EU, it has turned the Court of Justice, qua ultimate arbiter of EU law, into a pillar of integration. This perspective, however, ignores that some of the regulated activities can hardly operate under such subordination. The difficulties of judicial review in the face of technically complex and future-oriented regulatory activities, carried out under conditions of uncertainty, and having political implications, turn these challenges to the law into a matter of articulating a role for judicial review that could still provide an effective check on public power. But this discussion misses an important underlying difficulty: often, legal norms simply do not provide grounds for review that are external to the administrative activity that they are meant to constrain. In such circumstances, administrations acquire constitutive powers, determining the meaning of the law that binds them and defining the public interests that they are bound to pursue. Courts can hardly constrain such powers. In this article, I analyse such instances in the areas of EU bank resolution and pesticide authorization. Although this is not an EU law-specific problem, it has specific implications in a polity where public authority asserts itself as being fundamentally dependent on the law.
The word 'alien' should be replaced with 'non-citizen' or 'foreign national' in UK case law and legislation. Legal transplantation of the term from England to other countries such as Australia and the United States which were part of the British Empire, and are largely populated by European settlers, resulted in departures from its original usage to mean non-subject. It was used to control foreign populations, as well as those already present long-term within these countries (including indigenous populations) in a deeply racialised manner took place. In the UK, exclusion of former colonised subjects from the British Isles was attempted by removal of subjecthood status and associated legal barriers to their entry and residence rather than through identifying aliens. While in present-day UK, statutory instruments do not use the term alien very often, in Australia it is a specific constitutional power. In the United States, the term alien is part of many statutes including those wholly unrelated to immigration or nationality. Yet in other similar Empire-linked settled jurisdictions which also borrowed the term from Britain, such as New Zealand and Canada, the word alien was dropped from modern immigration and nationality statutes altogether in order to avoid its pejorative connotations. The implication of this comparative analysis is that the word alien is far less entrenched in current UK law than it is in Australia or the US, and the UK may be able to adopt similar changes as New Zealand and Canada.
This article makes a case for the introduction of a new UK Accessibility Act to supplement existing equality law and outlines key ingredients to be included in such legislation. Such a reform would fulfil commitments under international human rights law, align with purported cross-government prioritization of accessibility, establish a more joined-up and effective regulatory structure and, most importantly, hasten progress toward a barrier-free society in which disabled people and others are enabled to learn, work, move and live as equals. The article has three main sections. The first elaborates on the accessibility obligations set out in the UN Convention on the Rights of Persons with Disabilities. It also discusses recent legislative responses to these international human rights requirements in the European Union (the European Accessibility Act) and Canada (the Accessible Canada Act). The second section maps out the various accessibility interventions of the Equality Act 2010 and exposes the limits of the current approach, which is patchy, splintered and heavily dependent on expensive and high-risk litigation by individuals. The third section draws on the examples of Canadian and EU legislation to consider what should be included in a new UK Accessibility Act.
Family law legislation has often been a focal point for reforms which are aimed as much at changing the societal attitudes and behaviours of family members as affecting their statutory entitlements or how the courts approach family disputes. There has been a tension in the approach of politicians between, on the one hand, using family law to influence how family members think and behave in relation to one another, and on the other hand, failing to engage with policy solutions that might more effectively achieve those aims. This article situates family law as a tool of social policy, but one which is often not suited to the policy problems to which they are applied. Family law, which generally responds to some form of family crisis, comes too late to have the desired effect. The problem needs to be taken ‘upstream’, considering the policy factors that influence the way in which families operate before any crisis occurs. This article repositions these upstream policy issues as the central considerations for those interested in effecting societal change to family life.
This article argues that fair administrative process—a central idea of contemporary administrative law—has an under-theorized social side. This is the idea that the public’s perceived (un)fair experiences of administrative processes, particularly in everyday encounters with government, affect their attitudes and behaviours over time. In the aggregate, this effect can potentially shape the capacity of the state to implement policy, the overall outcomes of public action, and, in turn, society. The article will show how existing empirical evidence suggests advancing understanding of this social side of fair administrative process could present a viable pathway to improving the efficacy of public action and what the state might be capable of achieving more broadly. However, it also suggests that maximizing the possibilities here requires administrative lawyers to expand how they conceive of and study procedural fairness in the context of modern government.
While legislation and administrative frameworks shape how landowners own or use their land, land law continues to be understood primarily as a private law subject. Public interventions are conventionally treated as outside land law’s remit and are rarely addressed in property theorization. Responding to this absence, this article outlines the scope of public land law—understood as the governance of land by the state in the public interest—introducing the concept of property as authorized, where land ownership and use are limited by authorization. The analysis draws on examples from planning, leasehold reform, and public access legislation, alongside human rights protections under Article 1 of Protocol 1 (A1P1) of the ECHR and the newly recognized fundamental common law right to property, to show how public and private land law both constitute property. By examining these interactions, the article encourages greater engagement with public land law to understand how land law operates today.
A key function of family law is to regulate family breakdown and conflict. Consequently, family law has been characterized as under threat as family disputes have been diverted from courts and lawyers, and its norms have become inaccessible to many. This article questions the scale of the threat. It argues for a rethinking of the boundaries of family law to shift focus away from dispute resolution and towards more constructive and anticipatory approaches. It shows how family law norms and rules might usefully be understood at the beginning of, or during, relationships. As such, the relevance of family law can be recaptured by seeing it as a tool for better informed—and perhaps normatively better—relationships over time; family law can be for family life, as well as family conflict. Finally, the article considers how contemporary shifts in the modalities of family law might be embraced and extended to accommodate a family law for family life agenda.
Law reformers tend to be remembered as those responsible for transforming the law; but for their involvement, the law may not have changed as it has. Yet when evidence of this is not apparent, we might discard as remote campaigns which were in fact very important. These campaigns may have been neither immediately nor directly successful, but had, what I have termed, ‘inconspicuous impact’. Inconspicuous impact is an effect upon the law that did ultimately lead to change, but not in a linear or short-term fashion. The effect is inconspicuous because it relates to efforts to change the law that are not typically viewed or credited as having contributed to reform, perhaps because those efforts were initially or ostensibly unsuccessful. The inconspicuousness of impact is especially characteristic of feminist efforts to reform the law through legal channels since historically, feminists have struggled to gain a sympathetic ear among members of the executive or judiciary. This has often left feminist pressure groups outside of formal law-making processes, but they have nevertheless been lawmakers in an indirect sense. This article is about why, and how, we should pay attention to the more subtle ways in which feminists have contributed to law’s development. Using examples from the attempts of one feminist pressure group to use law as a tool for change – the Married Women’s Association – I identify reasons why impact can be inconspicuous and why this should lead to revisionist accounts of legal history. I argue that this approach compels us to look in different places, widen our intellectual bandwidth, and rethink what constitutes law reform.
Institutional investors, as stewards, exercise power on behalf of their clients/beneficiaries, and in doing so, regard a broader spectrum of 'unseen' others - end investors, investable assets, and the broader economy, environment, and society. This analytical framework reveals a crucial distinction: the interests of these unseen others may not align with those of the clients/beneficiaries on whose behalf investor stewards act. By introducing multiple stewardship relationships -client stewardship, end-investor stewardship, asset stewardship, and sustainability stewardship-this article develops a model of enlightened stewardship and addresses a key challenge: stewardship beyond client stewardship mainly operates outside the domain of hard law. The article advocates for stewardship codes to 'crowd in' enlightened stewardship, complementing regulatory frameworks and leveraging intrinsic motivations for responsible investment. Using the UK Stewardship Code as a case study, it suggests incorporating elements akin to section 172 of the UK Companies Act 2006 to provide essential clarity and guidance in redefining the purpose of stewardship.
The use of legal fiction in public law has shown no sign of abating, as demonstrated in the enactment of the Safety of Rwanda (Asylum and Immigration) Act 2024. Accompanying questions or concerns are about the degree to which they are problematic, useful, or detrimental, what is to be done about them, and whether their prevalence is specific to British or English legal culture. This article examines what has been done, or what has happened, to deal or to cope with them, in orthodox constitutional legal doctrine and administrative law liability. After adopting a working definition of legal fiction and showing Dicey's own preoccupation with the constitution's legal forms and fiction, it does so through two case studies. Both involve basic orthodox constitutional legal doctrines-parliamentary sovereignty and the rule of law-with which Dicey has long been associated. The one case study is of Parliament's sovereignty, limitless in law, and limited in actuality. The other case study is of legal fiction in relation to developments in public authority liability under equality before the law, particularly for omissions, or non-conferrals of benefit. Through these studies, this article will argue that the fortunes of legal fiction in the British or English legal context have been not simply of all-or-nothing rejection or retention. They have been, because of the unease accompanying the use of legal fiction, also of their domestication, in analytical distinctions, and refinement of judicial language in common law reasoning. The extraordinary legal forms have been made more ordinary or so to appear, showing them as domesticated to have been and to remain of current, ongoing and present, relevance.
This article analyses impartiality in Investor-State Dispute Settlement (ISDS) by identifying the way that the parties' trust in arbitrators is constructed. Drawing on the findings of a large-scale empirical project, it questions the applicability of an orthodox judicial doctrine of impartiality to ISDS on the grounds that trust in arbitrators is constructed on a fundamentally different basis from that of trust in judges. The primary feature of a judicial doctrine of impartiality is that trust is founded on an absolutist approach to impartiality which is intended to ensure that judges have no predispositions to parties. In contrast, trust in ISDS is founded on the method of party appointment which is based on a very different assumption-that arbitrators' predispositions can be valuable and appropriate in the decision-making process. Drawing on empirical findings, moral philosophy, and psychology, this article proposes the idea of contextual impartiality. Under this approach, the question is not whether an arbitrator can meet universal standards of impartiality irrespective of the context within which the arbitrator operates. Rather, the critical distinction is between permissible and impermissible partiality which depends on whether the individual is reasonably expected to act partially because of their circumstances. In this respect, the article identifies open-mindedness as a fundamental feature of a contextual approach to impartiality and a bright line between permissible and impermissible partiality.
Engineering uses duplication to create fail-safe systems. The existence of two system components capable of performing the same function increases reliability, as the supposedly superfluous component can be turned on if the main one breaks down. Although redundancy ensures that many of our modern conveniences such as computers and planes do not crash, this solution has not been extensively explored in a legal context. This article will articulate some of the advantages of redundancy between different areas of the law (administrative, civil and criminal) and at an institutional level (among bodies performing monitoring, investigative, prosecutorial and adjudicative functions in the same and in distinct jurisdictions). Legal efforts to combat corruption around the world provide illustrative examples of the many advantages of this strategy, but also some of its risks and disadvantages. Far from providing a comprehensive empirical analysis of this subject, this article articulates hypotheses to be tested and proposes that the topic deserves more attention among legal scholars than it has received.
Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.
