Building on Roger Cotterrell's call to theorise the law of trusts in relation to trust as an all-pervasive sociopolitical phenomenon, we explore the interplay between these two concepts of trust in relation to the rise of neoliberalism. Here, we centre how the ability of offshore trusts to evade tax/regulatory obligations compromises the ability of sovereign states to build institutions that nurture trust. Historicising this dynamic, we turn to how the rise of a post-imperial world of sovereign states in the context of decolonisation and the Cold War prompted elite interest in transnational legal innovations - especially trusts - that could avoid state-led redistribution efforts. Empowered by various crises, such innovations became central to neoliberal globalisation and its erosion of trust in the sovereign state. Focus on these material dynamics provides a new lens for conceptualising the failure of human rights and anti-corruption projects whose state-centric outlook detracts attention from broader transnational forces.
This study examines prosecutorial resistance to democratic backsliding in Poland (2016-23) using & Scaron;ipulov & aacute;'s three-dimensional analytical framework. Despite facing greater structural vulnerabilities than judges - hierarchical subordination, immediate retaliation risks and weaker formal protections - Polish prosecutors developed sophisticated resistance strategies combining on-bench actions (challenging illegitimate orders, refusing transfers) with off-bench mobilisation (professional associations, media engagement, coalition-building with judges and civil society). Based on interviews with eleven prosecutors, the research reveals a paradoxical effectiveness pattern: minimal immediate political impact coupled with significant long-term achievements. While unable to prevent institutional capture, prosecutors elevated their professional standing, fostered unprecedented interprofessional solidarity and raised societal awareness about prosecutorial independence. The study demonstrates that prosecutorial resistance functions as democratic preservation rather than immediate political opposition, maintaining institutional memory and professional standards crucial for future democratic reconstruction.
Abstract This article argues that modern trust law has undergone a radical global transformation while remaining largely absent from democratic debate, a condition the article terms trust law’s ‘permissive invisibility’. The article traces how trust law’s origins in equity entrenched a judge-centric, normatively charged but socially insulated doctrinal culture, which proved increasingly permissive as trusts were repurposed for regulatory arbitrage in an era of transnational financial capitalism. The article then shows how legislative reform was critically enabled by trust law’s particularly low public salience but inverted, high salience among the owners and operators of concentrated capital. The recursive force of this judicial and legislative permissiveness has now normalised antisocial innovations such as perpetual and massively discretionary trusts. The article concludes by calling for empirically grounded, critical socio-legal study in the tradition articulated by Roger Cotterrell as a necessary precondition for any democratically credible trust law reform agenda.
The question of how digital health is regulated has become increasingly important within debates on technology, inequality and global health. While digital health is frequently celebrated for its capacity to expand access, build resilient systems and advance equity, scholars have raised critical concerns about its role in reproducing asymmetries of power. The potential for reproducing rather than curbing inequality is particularly relevant for the Global South. This Special Issue of the International Journal of Law in Context interrogates the ways in which digital health infrastructures, regulatory frameworks and transnational data flows are constitutive of coloniality and neoliberal capitalism. Bringing together socio-legal, feminist and decolonial perspectives, the contributions examine regulation as a terrain in which vulnerabilities, exclusions and structural inequalities are reinforced. Against the celebratory rhetoric of innovation, this collection situates regulation as a key site for understanding the entanglement of digital health with broader histories of coloniality and capitalism.
This article proposes to centre economic inequality when introducing trusts to law students. The subject is reputedly tedious and gruelling. This can only be compounded, as economic inequality intensifies, by the experiential distance between underprivileged students and the world of trusts. Yet their career prospects, and potential contributions to reducing inequality, can benefit from understanding trusts. The need to engage students in learning the subject, therefore, warrants attention. This article offers a four-step method aimed at promoting engagement by introducing the subject within the context of the familiar social problem of drastic economic inequality. It constructs this method by drawing from Roger Cotterrell's critical and socio-legal consciousness about trusts.
This article brings Cotterrell's legal concept of community based on trust-based interactions in social life to expand the critical horizons of economic sociology of law (ESL) in its analytical, normative and empirical aspects for law and development in Africa. Dominant law and economics approaches sometimes see informal economic activity as an aberration and/or an obstacle in development. This article proposes an alternative way of looking at informality in development in Africa through the lens of ESL. As part of wider social life, economic life is about social interactions in production, exchange, distribution and consumption while legal life is about social relations in and under the law. Furthermore, 'legal and economic life shape and are shaped by each other, as well as by the wider social, and more-than-human, world'. This calls for a framework that reconceptualises law in ways that are inclusive of the many state, social, economic and other normative orders such as informal economic activity in African societies that are continually interacting as part of wider social life.
This article draws on Roger Cotterrell's framework for the sociological interpretation of the concept of trust to expound on, via examples from an empirical project in South Africa, methods for the empirical study of an informal environmental economy. Three distinct challenges encountered during fieldwork on the informal waste economy in South Africa are used to make a case for more robust empirical research methods - positionality, observation and the production of a documentary film, a non-traditional output. Each challenge concerns the relationship of trust between researcher and research respondent. The article concludes that these challenges can be addressed and managed via the appropriate socio-legal methodological framework. The article's findings will have relevance for those embarking on an empirical study of the informal environmental economy, and for those interested in socio-legal methodology more generally.
This reflective practitioner essay asks what it means to teach law 'as a conversation' and who is heard as speaking law within that conversation. Drawing on teaching notes from an elite Indian law school writing classroom, the article analyses a staged counter-factual dialogue among four legal thinkers (Nicholas J. McBride, Patricia J. Williams, Kiruba Munusamy and Angela D. Gilmore). 'Counter-factual pedagogy' names a method that stages an 'as-if' encounter that is structurally unlikely within conventional legal education in order to make institutional defaults newly visible, including neutrality as epistemic rigour, professionalism as merit and doctrinal learning as separable from social power. The article reads the exercise through five literature-informed lenses (voice, neutrality, performance, justice, discomfort). No student quotations, paraphrases or artefacts are reproduced.
This article reviews Roger Cotterrell's landmark paper, 'Trusting in Law: Legal and Moral Concepts of Trust'. That paper identified a shift from a moral conception of trusteeship based on the notion of a settlor reposing personal trust in a trustee, to an amoral systems-based conception of trusteeship, in which personal entrustment is largely absent. This article examines contractualised trusts, containing widely drawn exemption clauses, which commonly underpin commercial arrangements. It identifies two developments which have the potential to limit the amorality of the contractualised trust. The first is a reaffirmation of the existence of a non-excludable core of fiduciary obligations. The other is an enhanced understanding of the trustee's accountability, owed to the court as well as to the beneficiaries, for the due administration of the trust. The developments demonstrate that equity has the resources to overcome contractual overreach in trusts law.
This article takes as its empirical reference the phenomenon of 'migration in transit', which gained relevance in 2018 with the arrival of thousands of migrants, mainly from Africa, on the southern coast of Spain, bound for other European countries. Based on a series of specific cases of irregular migrants, asylum seekers, unaccompanied minors or those at risk of statelessness involved in this phenomenon, I have attempted to trace their 'legal routes' and their determining factors (regulatory assumptions, legal documents, time frames, etc.) as if they were movements across the map of migration and asylum law. I conclude that, similar to geographical (im)mobility, although these legal itineraries are largely constructed on the basis of the legal provisions (requirements, deadlines, bureaucracy, etc.) set out in immigration and asylum regulations, there are also elements of social practice, such as legal advice, solidarity or social perceptions, which facilitate the transition between legal statuses.
When does legal mobilisation democratise institutions rather than instrumentalise them? Existing frameworks cannot answer this question: deliberative democracy theory evaluates political engagement without addressing legal mobilisation; socio-legal scholarship documents litigation's effects without providing normative criteria. This article develops reflexive juridification as a framework for evaluating democratic legitimacy across institutional domains. Democratic legitimacy, I argue, requires movements to fulfil three copulative requirements: communicative translation, functional differentiation and identity preservation. These requirements - grounded in Habermasian discourse theory and operationalised through comparative analysis of Chilean and United States cases - specify procedural standards for assessing how movements navigate political deliberation and legal interpretation simultaneously. Comparative analysis reveals that instrumental juridification emerges symmetrically across ideological orientations: progressive movements through the judicialisation of politics (Chile's Constitutional Convention), conservative movements through the politicisation of law (Dobbs). The framework advances interdisciplinary legal studies by providing normative criteria independent of ideological content, evaluating process rather than substance.
Wills have lent themselves to more performative possibilities than any other legal document. They have been engraved, painted, written about and sung. Yet within legal scholarship these representations have been overlooked. Interpreting the Reading of the Will widely, this article demonstrates the tenacity of the will on artistic imagination and, at the same time, its starkly shifting functions and audiences. Adopting a chronological approach, it examines church monuments from the sixteenth century, nineteenth-century 'realist' paintings and novels, twentieth-century crime fiction, comic operas and figurative domestic porcelain, and more recent gritty and glamorous TV soaps and contemporary performance art. Aided by scholarship across a wide range of disciplines, it argues that this diverse work mirrors and illuminates historical, political and sociological debates about the public and private nature of inheritance. In a hyper-visual world, it makes a case for taking artistic endeavours seriously within legal scholarship and pedagogy.
The global order is undergoing significant transformations with far-reaching implications for international criminal justice. These shifts pose an existential challenge to core crimes accountability while re-shaping its pursuit. As the liberal order recedes, the International Criminal Court (ICC) faces a crisis driven by absolute sovereignty's reassertion, weakened multilateral governance and increasing political and coercive pressures from powerful states. Simultaneously, these developments promote decentralised accountability, fostering the emergence of a polycentric system of international criminal justice. Trends in re-nationalisation, hybridisation and regionalisation align accountability with a more pluralistic, fluid global order. In this context, the ICC is not obsolete but requires a redefined role. While no longer the apex of international criminal justice, its existence remains crucial to addressing the risks of decentralised accountability. The Court, particularly its Office of the Prosecutor, should reconfigure strategies around positive complementarity, repositioning itself as a co-ordinating hub within this polycentric system.
Why did the nineteenth century see so little progress in addressing smoke pollution, even as smoke was increasingly recognised as a problem and economical technological solutions were identified? This article argues that efforts to abate smoke were impeded by the antagonistic class relationship between stokers and manufacturers, which prevented the emergence of a mutually beneficial compromise around smoke abatement. Employers sought to reduce smoke by compelling their stokers to take greater care under the threat of punishment. Law played an important role, siding with employers to impose liability for smoke pollution on stokers. Even when stokers were not prosecuted directly, employers often demanded indemnities as compensation for careless stoking. This reinforced mistrust between the two classes, undermining efforts to bring stokers on board with the goal of abating smoke. These findings may offer lessons today, as climate policy continues to be opposed despite the availability of green technologies and the existence of a scientific consensus on climate change.
Despite the social, political and personal importance of contentious death investigation, medico-legal autopsies have received scant socio-legal attention. By extending understanding of the importance of care for the dead in this context, this article begins to bridge that gap. To do this, I explore original empirical data from interviews with Anatomical Pathology Technologists who both assist during post-mortems and take responsibility for the care of the deceased's body before and after autopsy. I argue that care is woven throughout their practice and identities. This care is enacted within a complex context of relations and regulations, such that practice can simultaneously be technically and morally 'good' (including actions that go beyond what is necessary or mandated). In making this argument, I both extend understandings of care to relationships with the dead, and contribute new insights into the way that coronial justice can, and should, gain legitimacy.
Rates of judicial dissent vary dramatically between Southern Africa's appeal courts, even though judges frequently circulate between their benches. This variation cannot be explained by the ideological distance between judges or by their judicial philosophies. Differing institutional arrangements provide better but still incomplete explanations. These arrangements reflect dramatic transformations in the region's judicial cultures. Analysing these diverging cultures illuminates why some forms of dissent have proved particularly contentious, and why styles of adjudication favouring dissent in some areas of the law have aroused particular hostility. There is thus no straightforward 'norm' that promotes or undermines judicial consensus in the region.
This paper adopts a sociosemiotic perspective to examine how normative consensus and legitimacy are constructed in global artificial intelligence (AI) governance discourse. Drawing on a corpus of forty-seven international normative documents, the study identifies an emerging cross-textual consensus around three core principles - Safety, Human-centric and Fairness - and analyses how these are semiotically encoded. The findings reveal tensions between state and non-state actors, and between semiotic agreement and practical implementation. For instance, 'Safety' is often framed through securitisation discourse, while 'Human-centric' is increasingly grounded in international human rights frameworks. The study further shows that discursive strategies such as nominalisation help establish surface-level consensus but introduce ambiguity that undermines enforceability. By conceptualising governance texts as dynamic semiotic systems, this research moves beyond the hard law-soft law dichotomy, revealing global AI regulation as a contested arena of meaning-making. It offers a theoretical basis for advancing more inclusive and operational governance models.
The COVID-19 pandemic brought about changes to almost every aspect of life. Courts were no exception, with the pandemic dramatically increasing the use of virtual court hearings. This paper explores virtual hearings and their impact on therapeutic approaches to judging, which prioritise connection and engagement between judicial officers and participants. While particularly drawing on the experience in Australia and the United Kingdom, the paper draws on broader international research to identify the potential challenges of seeking to conduct therapeutic judging online, but also areas where the virtual environment might improve participants' therapeutic experience. Further research on this topic is likely to be fruitful, as virtual court hearings become a more entrenched part of court practice. We therefore canvass areas for future research, to enhance the therapeutic potential of the judicial role in a virtual environment.
