It has been widely evidenced that international crimes are collective in nature and involve individuals acting through an organized structure. Thus, besides punishing the physical perpetrators, an important task for international criminal law is to develop the proper doctrines to attribute responsibility to those on top of such organizations. In this direction, the concept of superior responsibility becomes highly relevant, attributing liability to military or civilian superiors for their failure to prevent the crimes of their subordinates. Nevertheless, international criminal law has not yet developed a concrete approach to the nature and application of the superior responsibility doctrine. To overcome this shortcoming, this article identifies the links between the superior responsibility doctrine and the theoretical framework of attributing criminal responsibility to the individual for the commission of international crimes. Developing on omission theory, it suggests an alternative theoretical approach to the superior responsibility doctrine, which combines the theory of control already applied in the case law of the International Criminal Court (ICC) with the mens rea requirements of the ICC Statute.

Article 16 of the Ireland–Northern Ireland Protocol annexed to the EU–UK Withdrawal Agreement is an escape clause which allows the parties to deviate from their obligations under certain conditions. This article maps out the main features of the safeguards provision in the Protocol in light of international trade law and international relations literature on treaty design. It provides a detailed examination of the safeguards provision in the Protocol and highlights the key design flaws associated with this regime as well as some potential solutions to such flaws.

The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a reason to bring about x rather than y—especially if there is otherwise reason to promote y rather than x? In this paper, I argue that extant solutions to this problem are inadequate and propose an alternative. I argue that the normative significance of the wishes of the dead is to be found not in the dead's well-being or interests, but instead in the relations of friendship we bear to the dead.

This article is based on an Ecclesiastical Law Society London Lecture delivered on 17 November 2021. It builds on a previous lecture entitled ‘Safeguarding in church and state over the last 50 years: “from Ball and Banks to Beech via Bell”’, which also formed the basis of an article published in this Journal in 2020. That article, among other things, identified a number of significant cases of sexual abuse by clergy which were/are the subject of ‘lessons learned’ reviews and concluded by suggesting how investigation and fact-finding might take place in the future, independent of the bishops, but under the supervision of a ‘judge’, and argued that effective risk assessments could only be based on findings of fact. The author was subsequently asked to chair a working party for the Ecclesiastical Law Society aimed at addressing how the Clergy Disciplinary Measure 2003 (‘CDM’) should be reformed. This article now deals with events that have occurred since, from the publication of the Independent Inquiry into Child Sex Abuse (IICSA)'s investigative reports into the Anglican Church (inter alia), the Lambeth group's proposals for reform of the CDM, through to General Synod's responses to both sets of recommendations. It also surveys in some detail the approach the church has taken to the assessment of risk within its safeguarding policy in recent years, as well as its historical approach to clergy discipline. The article concludes by drawing some threads together as a result of the author's own work and research into these two subjects over the past two years, and finishes by suggesting some possible directions in which the church ought now to move.

This article argues that marriage is a divine institution that pre-dates the state, and marriages are supernaturally effected by God consequent on the exchange of marital consent by the parties, whether or not the state recognises them as marriages. In fact, taking note of, and legislating about, marriage thus properly conceived is not within the state's remit. Despite this, the law in England and Wales is involved with the institution of marriage in three main ways: (1) it purports to define marriage, and its entry and exit conditions; (2) it passes laws affording or denying certain legal benefits or penalties on the basis of marital status; and (3) it registers marriages, and in practice imposes or denies the benefits or penalties just mentioned on the basis of registration of marriage, or lack of it. The supernatural action on God's part of creating marriages is not a fit subject for such involvement on the state's part. The underlying exchange of marital consent by the parties is, by contrast, within the state's sphere of competence, but it is argued that the state should be tracking a broader category of relationships than just those involving the exchange of marital consent. It is suggested that all marriage law should be repealed, and replaced by an Australian-style law of de facto relationships. If the law deals with de facto relationships there is no need for it to be involved with the institution of marriage as well, and that institution can be left to flourish outside the state's grasp. The article goes on to respond to some possible objections.

This article seeks to remedy a fundamental flaw in the debate about European integration and European Union (EU) law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The article shows that the significance of EU law can be understood only against the background of the historical transformation of the European public law order with the decline of the European empires. European integration is an integral part of a new European public law order that finally replaced the public law order of the European empires – Droit Public de l’Europe or Jus Publicum Europaeum – in which the European states held a privileged place as the only ‘civilised’, and hence, sovereign states in the world. The post-World War II European public law order entailed a new vision for domestic public law, but also constituted intra-European relations anew, and established a new set of external relations between Europe and its former colonies. With the shift from ‘European’ international law to ‘universal’ international law in the twentieth century, European integration helped carve out a space for ‘Europe’ in a world where Europe was no longer the centre of gravity.

The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.

This article offers a critical discussion of two influential positions in contemporary legal and political theory, which will be referred to as ‘political constitutionalism’ and ‘strong popular sovereignty’. Despite their important differences, both share a sceptical approach to the dominant constitutional practice in liberal democracies, hence they are brought together here under the term ‘weak constitutionalism’. They both highlight the political dimension of the constitution, arguing that democratic legitimacy requires institutional arrangements that give the people and/or their representatives the last word in settling fundamental issues of political morality. By contrast, this article underlines the legal dimension of the constitution as the repository of the moral principles that make possible a practice of public justification in constitutional states. It is from this second constitutional dimension that the critical arguments are developed, both against the desire to take the constitution away from the courts and the aspiration to recognize the constituent power as pre-legal constitution-making faculty.

In Autumn 2021 the British and Irish Association of Law Librarians (BIALL) carried out a follow-up survey to the May 2020 ‘Covid-19 Industry Survey'. BIALL President, Catherine Bowl, gives an overview of the findings of ‘State of the Nation' survey which was published in December 2021. The results of the survey are to be found on the pages that follow this introduction.

Why are COVID-19 mitigation strategies successful in reducing infections in some cases but not in others? Existing studies of individual policies tend to neglect the many interaction effects that arise when multiple policies are enacted simultaneously. Particularly, if a socially undesirable behavior has a close (and equally problematic) substitute, then a prohibition of that behavior will simply cause people to switch to the substitute, resulting in no effect on infections. However, joint policies that prohibit both the targeted behavior and the substitute will create a positive interaction effect, which closes the loophole. Respectively, behaviors that are complements (rather than substitutes) can be discouraged by prohibiting one behavior because this discourages complementary behaviors as well.

We provide a new argument for why COVID-19 policies can fail and why the evaluation of such policies may be incorrect: policies are effective only when they reduce infections as a general equilibrium, accounting not only for the targeted behavior but also for interaction effects.

We illustrate our arguments by applying insights from traditional and behavioral law and economics to several examples. Thereby, we highlight regulators’ challenge when facing interaction effects and factors such as social norms and time preferences.

This foreword explores the history of the American Society of Law, Medicine & Ethics and its role in promoting access to care and antiracism.

This article analyses attempts by the Libyan Investment Authority (LIA), the sovereign wealth fund of Libya, to challenge the domestic implementation of asset-freezing measures requested by the United Nations Security Council (UNSC) and the International Criminal Court (ICC) in the United Kingdom (UK) and Italy. The UNSC requested that states freeze LIA assets in early 2011 before partially easing the restrictions imposed in September of the same year, while the ICC requested the freezing of assets belonging to the then Libyan leader, Muammar Gaddafi, and two further accused persons shortly thereafter. The article scrutinises how these measures were incorporated into the legal orders of the UK and Italy before analysing how the LIA has challenged these actions in the Italian courts and those of England and Wales. In so doing, it aims to demonstrate that domestic courts offer additional fora in which individuals (and entities) might seek to enforce the legal protection to which they are entitled when faced with their assets having been frozen by states at the request of the UNSC and/or the ICC.