The articles in this Special Issue of the journal explore diverse issues, but all in different ways are stimulated by developments in our understanding of the brain. It is coming to be understood that developments in neuroscience can help those who make the law and those who study it use the insights of scientific knowledge to assist in the understanding of human behaviour. Developments in cognitive neuroscience offer new insights into the nature of normative judgement. As Casebeer and Churchland (2003, p. 170) have noted, ‘the neurobiology of moral cognition is a justifiably hot topic’. As Goodenough and Prehn (2004, p. 1713) note, ‘the great advantage of the cognitive neuroscience approach is that we can now bring together psychological models of cognitive and affective process, experimental paradigms, various behavioural and psychophysiological measurements and functional brain imaging techniques’. Greene and Cohen have argued (2004, p. 1775) that neuroscience will probably have a transformative effect on the law, even though existing legal doctrine can, in principle, accommodate its findings. They foresee, and indeed recommend, a shift away from punishment rooted in retribution towards one adopting a consequentialist approach to the criminal law. That the US Supreme Court in 2005 (see Roper v. Simmons) eventually came to view the death penalty as unconstitutional for offenders who committed their offences when under 18 is in part the product of this shift in thinking. Steinberg and Scott (2003) had shown that adolescents did not meet the law’s requirements for rationality and so were unsuitable candidates for the death penalty.

Privacy rights are growing apace, as can be seen from a continuing stream of judgments from UK and European courts, the rise of special interest privacy groups and other institutions tasked to protect privacy. Privacy has – its proponents suggest – at last arrived as a fully fledged legal right. However, despite these advancements, I suggest that privacy is becoming less prevalent in society; primarily because of technological and cultural changes, but also because the technical legal implementation of privacy is highly problematic. In this article it is argued that this seeming paradox should be more critically examined by socio-legal researchers who, to date, have done little to test the assertions and assumptions of the privacy lobby. This article maintains that there is a need for more investigation of the basis and assumptions behind data protection and privacy law and that a more robust analysis of the claims and rhetoric for these rights will change our attitudes towards privacy developments. The sociological conception that ‘underlying all social interaction there seems to be a fundamental dialectic’ will be used to undermine the legal notion of privacy as an individualistic ‘fundamental right’.

This article proposes a response to legal scholarship’s recent concerns with the complexity of law’s relations with culture, looked at from a sociolegal point of view. It argues that legal studies today must have a comparative dimension, and that they should contribute to an understanding of law in relation to culture, or as a cultural phenomenon. But there are problems with culture as a legal concept (or a social scientific one). Also, many long-established sociolegal ideas about ‘law and society’ are becoming obsolete. A way forward is to relate law to four pure types of community that interact in complex ways in social life and, together, embrace the various dimensions of culture. The article claims that a law-and-community approach to legal study clarifies law’s relation to culture, and provides a framework for comparative studies of law.

This essay seeks to shed some light on the portrayal of law and lawyers on television. Whilst it focuses principally on the British experience, it is written in the wake of American television’s extensive output and comments on these products. It indicates where the impetus for this work has come from and examines the changes in the portrayal of small screen lawyers. It notes the scholarship carried out in the United States and seeks to build on this pioneering work. It assesses the schemes used by the analysts of American TV law and notes their limited applicability to the British context. It constructs a typology of TV law programmes based on the development of distinctive styles of programming. This typology covers legal procedurals, legal dramas, legal comedies and legal reality shows. It notes the potential for analysis of the development of TV law programmes to shed light on areas such as the globalisation of culture and debates on legal education as well as on the nature and image of the legal profession and its socio-political function. It suggests that this process of mapping out the domain of small screen legal justice requires to be supplemented by detailed readings of the wealth of material which is revealed in the overview of the British experience and complemented by studies in other jurisdictions. It concludes that there seems to be a paradox at the heart of lawyer programmes. The dominant ethos of the vast majority of the material has been essentially reflective rather than refractive. The protagonists have been anti-establishment whilst the underlying trope has been the attainment of justice through the vehicle of the heroic lawyer.

The purpose of this article is to offer an analysis of the nature of contemporary legal power over the ending of human life in medical contexts. Drawing on Michel Foucault’s characterisations of power relations in the sphere of life and death in The History of Sexuality, Vol. I, it is argued that, in its current regulation of the ending of human life in this area, law displays elements of two of those modes, or forms, of power identified by Foucault – the juridical and the disciplinary. This argument is illustrated by reference to two recent cases – Re A (Children) and Re B (an adult: refusal of medical treatment) – and set against a background of shifting modes of governmentality (here, the movement from medicalisation to legalisation). Through an analysis of the forms of legal power in this particular context, the article also has a broader purpose – to advance an alternative approach to the question of power within the academic medical law field. Specifically, unlike the standard form of legal academic inquiry in this area – that is, one which is driven mainly by a concern for ethics and resolving ethical dilemmas – it is suggested that an appreciation of the importance that institutional context(s) and requirements play in medical law is necessary if we are to understand fully both the factors constitutive of legal power and the subtle, and often controversial, effects that flow from the manner in which it is exercised and asserted.

Kanaks are the indigenous Melanesian population in New Caledonia. This article explores the experiences unique to Kanak women after colonisation, including the impact of French colonial laws and policies on gender relations in the indigenous community. Kanak women have assumed largely concealed roles in the colonial period. Little literature deals specifically with the impact of French colonisation on Kanak women, possibly reflecting the dominant colonial tendency to discount the historical, cultural, socio-economic and political significance of Kanak women in the colonial era. The French colonisers fortified their control by sharpening and maintaining hierarchical differences based on race, class, gender, sexuality and space between the indigenous peoples and the colonisers. The emphasis on discrete boundaries was reinforced by repressive colonial laws, such as the indigenat, an emblem of colonial control exemplifying collusion between an indigenous patriarchy and the colonial administrators.

Transableism is a term which refers to moving between states of being able and disabled by choice rather than by happenstance. Insofar as this may imply a choice to become dependent, claims upon the healthcare system are likely to result. In this piece we aim to explore some ethical and legal implications of such claims. In order to do so, we draw upon current debates over the place of autonomy, beneficence and paternalism in public health ethics, the taxonomy of disability and the status of persistent unexplained physical symptoms (PUPS).

Fears that new scientific advances on the mind and the brain which establish that behaviour is determined by causes in one’s mind/brain and/or various past and present internal and external environments will undermine the attribution of legal responsibility are misplaced. Taking responsibility to inhere where conduct reflects upon an individual and where, properly understood, the individual could have done otherwise, determinism, operating in the right sort of way, should be embraced as a condition for responsibility.

The aim of this paper is to examine why public law is able to incorporate political theory but excludes feminist critiques. In order to achieve this goal a form of discourse analysis will be undertaken using epistemological and scientific perceptions of knowledge and explanation. This approach is both unusual and unique but will illustrate some of the exclusionary suppositions which underpin analysis within public law. The paper will conclude that only by adopting an alternative starting point for analysis, such as the use of concepts, will public law be able to incorporate alternative and critical approaches.

This article seeks to establish law and literature as two distinct yet interacting fields through which the norms of a particular culture are filtered. Drawing on Pierre Bourdieu’s sociological theory, it suggests that legal and literary statements are contextualised by norms and values that exert symbolic violence to the extent that, through communication and knowledge, they define social subjects and their material practices. The specific objective of this article is to map out the network of relationships between the apparently separate fields of the Children and Young Persons Act 1933 and the Criminal Justice Act 1948 and Alan Sillitoe’s The Loneliness of the Long-Distance Runner, and to understand the ways in which law and literature related to symbolic violence as they created, maintained or countered norms which constituted the English culture of juvenile offenders in the 1950s.

The article draws on two Office of National Statistics’ Omnibus sample surveys to provide the demographic context for living-apart-together.The Omnibus sample surveys for this project were funded by the ONS and by the ESRC (grant no. L326253054). The ESRC grant also supported the qualitative research, and we are grateful to Sophie Sarre and Jennifer Burton, who organised and undertook the interviews. The second part of the paper begins to explore the meanings of this form of partnership through interviews conducted with a sub-sample of respondents to the second survey, conducted in April 2004. The exploratory study complicates our understanding of the range of partnership statuses, which in turn has implications for policymakers grappling with whether and how to regulate different statuses in different ways. We conclude that living-apart-together is a significant form of partnership in Britain, and that it may take place at different points in the lifecourse. We explore the idea that this form of partnership further signals the spread of ‘selfish individualism’ and a ‘flight from commitment’. We find instead that living-apart-together represents a different kind of shared life to those involved from that they perceive to characterise co-residential relationships.

Functional magnetic resonance imaging (fMRI) is currently the most advanced technique for measuring and depicting brain function. Functional MRI studies abound in neuroscience, psychiatry and psychology. Inevitably, fMRI-based evidence will be offered in court as proof of matters involving parties’ mental states and capabilities. This paper analyses the likely admissibility of fMRI testimony and images. Cases involving other types of functional neuroimaging (PET and SPECT), which may shed light on judges’ receptivity to fMRI evidence, are briefly surveyed. The conceptual and methodological underpinnings of fMRI are then explored, prompting basic questions about the evidentiary reliability and relevance of fMRI results. The first reported case involving fMRI evidence, which raises several of these questions, is described. Finally, the admissibility and probative value of the fMRI images themselves are discussed. Assuming that the expert testimony that the images are offered to illustrate is admissible, it is argued that the law can obtain the benefits of fMRI science while minimising the judgmental risks by allowing triers of fact to see the images and encouraging experts and lawyers to educate the triers to interpret the images properly.

What explains the ebb and flow of religion? Some U.S. sociologists have argued that the demand for religion is relatively constant throughout history and across cultures and thus the fluctuations in religion are better accounted for by the supply-side factors such as the number and vigour of religious suppliers. Religious economies operate like commercial economies. Competition is said to be as beneficial for religion as it is for mundane products and results in greater religious vitality and overall levels of participation. This thesis is contrary to traditional secularisation theory, which maintained that religious pluralism undermined the plausibility and survival of all faiths. The religious market model and its supporting rational choice theory are examined in this essay. The bold claims of the model are not borne out by the empirical evidence. While the religious market model generates useful insights and data, its limits need to be observed.

Law has to be able to respond to new or changing circumstances. This ‘legal adaptability’ may be more important than details in the ‘law as such’. However, its meaning and its significance have not yet been analysed in detail. Thus, legal adaptability will be examined in this article. It looks at the worst case scenario by discussing a fictional country (Elbonia) where legal adaptability is poor, and identifies the main adaptability criteria. By using empirical data from the three Baltic States (Lithuania, Latvia, Estonia), it also provides an example of how to ascertain the degree of legal adaptability of particular countries.

Lord Kames (Henry Home) (1696–1782) was a well-known jurist, philosopher and judge in the Scottish Enlightenment, whose writings on aesthetics and literary criticism, especially, were very significant in the eighteenth century and later, not only in Britain and the United States, but also in France and Germany. His works on law and legal history were important mainly during his lifetime, but at least one aspect of his legal writings deserves special attention today: his concept of property, which he never stated as one comprehensive theory. Nevertheless, it pervades most of his work. This article seeks to extract and piece together, from a number of his legal and non-legal works, the elements of this quite original property theory which comprises legal-doctrinal, philosophical-theoretical, historical, sociological and psychological, aesthetic-moral and economic aspects. Together these elements can be restated as a surprisingly coherent property system, which may enrich discussions in modern property theory.

There is a remarkable resonance between recent findings about medical malpractice litigation and theories about the evolution of co-operation and reciprocity among humans. This should not be altogether surprising: theories of reciprocity seek to explain the behaviours we exhibit when we interact to punish or confer benefits on each other; while civil liability litigation may be just one of modern society’s ways of compelling otherwise unrequited reciprocity. The link between the two fields of study is worth exploring nonetheless. Just as behavioural economics and evolutionary theory offer useful insights for those of us who study legal phenomena, data about the behaviour of people accessing legal institutions may be useful to those who build behavioral theories. This essay is therefore, in a way, a lawyer’s effort to return the favour.

It’s easy to miss the jokes in Kafka. Scholarship and biography have recast Kafka’s stories as self-referential parables of anomie written by a tortured neurotic who did not want to be read. In a cruelly accurate portrayal of how the academic and biographical industries can be a barrier to understanding, Alan Bennett’s play Kafka’s Dick satirises how biographical prurience over Kafka’s life has obscured the fact that he wrote simple stories, steeped in black humour, about myopic men vainly trying to do impossible things. The two books considered here – Law after Auschwitz and Darker Legacies of Law in Europe – follow Bennett’s theme. They share a desire to strip away received assumptions and counter-factual conjectures in order to explore fascist legal thought and activity on their own terms. On the way they offer interesting parallels with contemporary European law, medico-legal thought, administrative law, penal theory and so on. But, more simply, these books, like Kafka’s, recount the stories of men – self-styled members of the master race attempting to take over the world – desperate to analyse and systematise laws created by authorities who despise law. And failing. They failed to see that a war economy is not conducive to enduring legal reform. They failed to see that basing contract and criminal law on community feelings is going to be a frustrating business.

This article critically examines the insights that biology (including evolutionary analysis and neuroscience data) offers for understanding the relationship between family law and family stability. The paper initially considers evolutionary analysis, comparative anatomy, and neuroscience data to conclude that while the pair bond appears to be a universal feature of human societies, long-term fidelity is not. The second part of the paper considers the benefits and limitations of evolutionary analysis concluding, first, that evolutionary analysis, without connection to modern neuroscience or sociological data, remains highly speculative; second, that where the evolutionary analysis is borne out by modern neuroscience and/or sociological data, it is more persuasive, but often leads to obvious conclusions; and third, that undertaking this type of examination nonetheless leads to new insights or new questions that should prompt productive research.

This paper argues that sociological analysis of law, and in particular the idea of ‘law in action’, can generate richer accounts of the role of law in EU integration than research which relies only on supranational and national legal systems’ own internal description of the legal field. A ‘law in action’ concept directs attention to intersections between a ‘legal’ and a ‘social’ sphere. While ‘law in action’ is often perceived in the literature as a normative order, this paper argues that variation in normative openness and closure is an important facet of the ‘law in action’. This argument is developed through an analysis of qualitative empirical data about the implementation of the EU Directive on Integrated Pollution Prevention and Control (IPPC 96/61/EC). The first part of the paper highlights limits of formal, instrumental and quasi-autonomous conceptions of law in EU integration. The second part develops the idea that ‘law in action’ is a conceptual device for analysing intersections between a ‘legal’ and a ‘social’ sphere. It also argues that political dynamics matter in such intersections. The third and final part of the paper draws on the data and suggests that norm closure is only sometimes achieved in determinations of what constitutes ‘the best available techniques’ (BAT). BAT is the key legal obligation which the IPPC Directive imposes on operators of mainly industrial installations.