This chapter offers a novel interpretation of Franz Kafka’s celebrated parable ‘Before the Law’, inspired by developments in European legal theory, particularly the work of Jacques Derrida, Niklas Luhmann and Giorgio Agamben. It suggests a dual role-change in the confrontation of the parable’s protagonists – the ‘man from the country’ and the ‘law’. According to this interpretation it is not a specific individual who stands before the law’ but the legal discourse itself that is in desperate search of its law. The parable’s ‘law’ for its part is not a generalised and distant authority (power, morality, religion, etc.), but the valid and positive law of our times. The chapter asks the question: What happens within the mysterious relationship between ‘Law AND law’ which has always preoccupied legal theory when that relationship is subjected to the nightmarish logic in Kafka’s universe?’

Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). This chapter contrasts them with a third position, a sociological theory in which justice appears as the ‘contingency formula’ of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate affinities of varieties of justice with changing social structures.

This chapter examines the ways that women were drawn into the local regulatory mechanisms that governed trade and the quality of goods within different towns, drawing largely on evidence from Nottingham and Winchester. These regulations included rules concerning weights and measures, the price and quality of goods and marketing behaviour. Presentments for wrongdoing were made by local officials and thus represented a different form of legal action to those discussed in the previous chapter. This allows for a wider understanding of the ties between women’s commercial activity, trading behaviour and their legal roles, building on the analysis of Chapter 2. The chapter again examines the practical implications of coverture in the way that women were or were not held accountable for their trading behaviour, and the way in which women’s marital and household identities were documented, including the extent to which wives’ brewing activity was hidden behind the identities of their husbands.

This chapter develops an account of how Prevent manages problematic spaces. Notably, this represents the conflation of community cohesion work and Prevent. While community cohesion develops separately to Prevent, a discursive reading of cohesion and Prevent texts show how the two become conjoined as a way of thinking about, and governing, threatening communal environments. Prevent also contains a focus on problematic institutions such as schools and prisons wherein extremism could take hold. Both rely on an analysis that understands an alienation from ‘Britishness’ and ‘British values’ to represent a threat which can be managed by intervening into the spaces in which radicalisation occurs. In order to manage these spaces, a governmental approach is invoked, wherein through intervening into the circulation of identities, it is presumed that less threatening identities can be generated. Yet it also pushes beyond Foucault’s articulation of this modality of power, seeking not just to regulate flows, but to actively intervene to promote ‘British’ identifications.

Niklas Luhmann and Jacques Derrida start with a common assumption in their analyses of the law and the economy: the foundational paradox of social institutions. After that autopoiesis and deconstruction move in opposite directions. Luhmann asks how de-paradoxification constructs the immanence of social institutions and builds a world of autopoietic social systems. Derrida’s thought aims at the transcendence of social institutions through their re-paradoxification. This chapter argues that there is a hidden supplementarity of autopoiesis and deconstruction which makes it worthwhile to relate the theories to each other. Derrida's distinction of writing/speech is blind to Luhmann’s distinction of consciousness/communication, but at the same time continuously provoked by it. Luhmann’s autopoiesis is permanently irritated by Derrida’s différance but at the same time unable to conceptualise it. This complementary blindness of their distinctions directrices is a source of mutual irritation which requires a reformulation of the social and of the possibility of justice.

This chapter turns to the idea of paradox in the law, particularly in the context of civil constitutions and hybrid networks. Beginning with an examination of the work of Rudolf Wiethölter, a proponent of conflict-of-laws theory, the chapter suggests a change in the mode of thought from conflict to paradox. Conflicts are contradictions between A and non-A, while paradoxes have the structure non-A because A. Constitutions are always paradoxical in their foundation, because they are formed in a self-referential mode and have a foundationless foundation, or a similar paradoxical formulation. This is true in a similar way for civil constitutions, although they are based on different mechanisms.

This chapter examines the idea of ‘living law’ proposed by the legal scholar Eugen Ehrlich, contrasting it with the Pax Americana of Bill Clinton. It argues that while Ehrlich’s idea proved to be wrong as regards the national law of Austria, it will yet turn out to be right, both empirically and normatively, as regards the newly emerging global law.

The introduction begins by narrating the ‘Trojan Horse’ scandal that engulfed Birmingham education in 2014. Identifying the anxiety surrounding Trojan Horse as being the introduction and intensification of an Islam-informed ethos into the schools, it highlights an analysis which claims this ethos will leave children in these schools ‘vulnerable to radicalisation’, a claim which could not have been made without the development of the Prevent strategy. The book positions this conceptual link drawn between identity, security and temporality as central to Prevent, with the Trojan Horse situated as an exemplar of the function of power that Prevent has mobilised in responding to the problematic of radicalisation, a function of power that the rest of the book will go on to outline. After outlining the key claims made in the book, the introduction then outlines the theoretical and methodological approach taken. It discusses the approach taken to the interviews as well as the Foucauldian concepts of problematisation, assemblage and diagram, outlining how they will be used to shape both the argument and the structure of the book. The introduction then concludes by providing an account of this structure.

This chapter examines attempts to represent the patient-consumer during the 1970s, focusing particularly on the part played by the Community Health Councils (CHCs). It suggests that a lack of clarity about what patient-consumer representation was, who was being represented, how this could best be achieved, and its ability to have any impact on health services, beset the CHCs from the outset. Uncertainty about the meaning and purpose of patient representation manifested itself in conflicting views about the CHCs’ role and effectiveness that impinged upon their ability to represent patients’ interests. Moreover, the CHCs had to contend with better established and more powerful interest groups within health care such as health professionals and health service administrators. Beginning with the origins of the CHCs, moving on to consider the meanings of representation, and then assessing the effectiveness of the councils, this chapter will demonstrate that having a voice and being heard were not the same thing.

This chapter considers the claim that the moral life is to be delineated in terms of explicit reason-giving and justification and the related claim that moral development is to be identified with increasing rationality. The authors reject this claim and argue against that a full and coherent account of morality and of the moral life must be one which recognises that, whilst crucially important, the giving of reasons and the provision of explicit justifications, emphasised by John Harris, inevitably takes place against, and indeed only make sense as part of, a rich and intersubjective background of more or less implicit moral discourses and practices which are themselves constituted by and constitute a background of developmental social relationships with a moral dimension. The authors emphasise that this does not imply that it is unreasonable to expect of those in powerful positions that they be explicit about the ethical principles and standards by which their practice is guided or that they should not be held accountable for their actions.

This chapter argues that many attempts to justify something morally because it is natural, or to condemn it because it is unnatural are unsound, either because they assume that what is or was the case must be right, or because they confuse reality and metaphor by supposing that there can really be natural purposes, or because they assume that it must be wrong to interfere with a natural process or a natural function, or that what one must do is determined by the process of evolution. But there is a place in moral discourse for an empirical examination of the natural and the artificial, and particularly of the spontaneous and the artificial. Sometimes one will have to take this seriously, because human nature is not infinitely malleable; sometimes the spontaneous will be preferable to the artificial, either because it will produce fewer unintended consequences, or because it will produce more satisfaction. One should not assume metaphysically that the natural or spontaneous is always better than the artificial: but one should acknowledge empirically that sometimes it is, and act accordingly.

The aim of this chapter is to explore the broader meaning and application of rights talk in connection with health from the 1970s to the early 1990s. It begins by considering the various ways in which the language of rights was used in the context of health. The chapter then moves on to consider the application of such language, through attempts to introduce a Rights of Patients Bill. A selection of patient’s rights guides and charters are also analysed, and the chapter suggests that it was unclear whether these were addressed to the individual patient, or all patients. A more collective understanding of patients’ rights was exhibited by organisations such as the Community Rights Project, which aimed to enhance democracy and accountability within the NHS through the language of rights. The establishment of Department of Health’s The Patient’s Charter in 1991, however, undermined such collective conceptualisations of rights. Addressed to the individual patient rather than all patients, The Patient’s Charter was indicative not only of an individualised approach to patients’ rights, but of a wider shift in the conceptualisation of the patient as consumer and who could speak for this figure.