This chapter extends the discussion of discrimination, as well as the exceptional provisions of Article XX of GATT, and incorporates analysis of the WTO Agreement on Technical Barriers to Trade, the Agreement on Sanitary and Phytosanitary Measures, and the General Agreement on Trade in Services to describe the scope of constraint on national governments’ regulatory autonomy.

In this chapter I respond to the claim that medical assistance in dying (physician-assisted suicide, euthanasia) is justified if refusal or withdrawal of life-sustaining care is. I conclude with a reflection on the importance of a norm against intentional killing to the medical profession

In this Chapter I argue, contrary to Aquinas and modern day defenders, that capital punishment is unjustified killing. Capital punishment is not required by retributivism, and Aqunas’s arguments defending the practice are unconvincing.

When it became clear that gender critical belief is protected in our anti-discrimination law, it was often said that, while such views were protected, manifesting or expressing them was not. This is simply not true. Article 9 of the European Convention on Human Rights protects both the absolute right to hold a belief and the qualified right to manifest a belief. The manifestation of protected beliefs is also protected under Article 10, which protects the right to freedom of expression. Because these are qualified rights, it may be permissible to interfere with them where proportionate. Where discrimination or harassment arises because someone holds gender critical views, this will be unlawful. However, where the treatment complained of is a genuine response to the fact or manner of manifestation of a protected belief, the legal situation becomes more complex. In assessing the extent to which is it permissible for an employer or other duty-bearer to interfere with the fact or manner of manifestation of a protected belief, the central importance of freedom of expression must be recognised as the background context of any analysis.

This use of preferred pronouns for those with trnsgender identities is extraordinarily contentious within the context of debates on sex and gender identity. This chapter begins by exploring why pronouns are so contentious, arguing that their use is an important signifier of underlying beliefs about the relationship between sex and gender identity. From here, the chapter explores whether and under what conditions an emplouyer could interfere with the expression of employees to prohibit or compell the use of particular pronouns. It concludes that this will require a fact-sensitive analysis which begins from the understanding that the right to freedom of expression is robustly protected, especially in the context of compelled speech.

The Court of Appeal in Higgs v Farmor’s School has provided a detailed analysis of the relationship between anti-discrimination and human rights standards in the workplace where employees manifest protected beliefs. Unfortunately, this analysis suffers from a central flaw by presuming that if manifestation of belief is protected under direct discrimination, it will always be unlawful for an employer to interfere. It is this presumption which prompted the Court of Appeal to defend the introduction of a justification test into what was previously a factual analysis of causation, by deeming less favourable treatment in response to ‘objectionable’ manifestations to have not been ‘because of’ the protected belief itself. This chapter argues that such an approach is unnecessary because it responds to a problem which does not exist. It is simply incorrect to presume that protection from direct discrimination necessarily implies that any interference with the manifestation of a protected belief is directly discriminatory. The ordinary application of the Equality Act is already coextensive with the protections afforded under the European Convention on Human Rights. Any interpretation needed under s.3 of the Human Rights Act is needed within the sphere of indirect discrimination, not direct discrimination.

This chapter describes the law governing transgender girls’ participation in girls’ sports. It compares the interpretations of Title IX’s prohibition on sex discrimination by the Obama and Biden administrations on the one hand and the Trump administration on the other. It explores the state laws regarding transgender girls’ inclusion or exclusion that have arisen against the backdrop of Title IX ambiguity. Finally, the chapter examines what courts have said about what Title IX and the Equal Protection Clause require with regard to transgender girls’ inclusion in or exclusion from girls’ sports.

Thomas More was the first to question the application of the death penalty to a particular offence. Theft had long been classified as a capital crime in the penal codes and practices of Britain and elsewhere. In More’s Utopia, a range of arguments is marshalled against the execution of thieves, echoed by later progressive thinkers. More’s critique brings to bear a whole armoury of arguments, including proportionality, deterrence, the public good, the law of God, and the causal relationship between poverty and petty crime. His argumentation was picked up by radical thinkers in Britain in the seventeenth century and gave impetus to a movement to formulate and promote alternative punishments for trivial offences. The principal candidates were hard labour and exile, the latter involving, in Britain, transportation to America and later Australia. Transportation had obvious disadvantages, and in any case it began to be asked, ‘How can the criminal be made maximally economically useful to the mother country?’ The contribution of Sir William Petty in the first decade of the Restoration (1760s) was crucial in this, and the idea finally finds articulation in the philosophy of Jeremy Bentham.

The Lex Talionis (‘an eye for an eye, a tooth for a tooth …’ ) was introduced by Hammurabi of Babylon, as a measure to control private vengeance and concentrate punishment in the hands of legitimate authority. It also carried the message that punishment should be proportionate to the crime, a principle that was pressed by progressive thinkers in later ages, such as Montesquieu. As the law was formulated, an offence committed merited an equivalent punishment: one eye for an eye, not two. Over time the Lex became the standard-bearer of backward-looking retributivism, which carries the idea that offenders deserve to be punished simply because of the offence they have committed. As such, it was an obstacle in the way of any burgeoning abolitionist thought, in particular because it prescribed ‘a life for a life’. The abolitionist Giuseppe Pelli attacked the Lex head-on. In doing so he drew on the diverse critiques of the Lex of a succession of earlier (non-abolitionist) thinkers. The Lex Talionis has staying power. It embodies a basic human conviction that retaliation is due for injuries suffered. As such, it is outside the law; it will coexist with, and survive, any legal environment.

This chapter systematizes the argument that the Court should and can calibrate its proportionality test to the infrastructural dimension of the populist attack on democratic and rule of law provisions – and, as such, operate the test as ‘anti-populist detector and responder’. While the general argument is all stages of proportionality aims at enhancing deliberation, representation and the rule of law in populist context, the specific argument is Court should revise its approach to the second stage of the proportionality assessment, the purpose or ‘legitimate aim’ of the interference, by holistically inferentially screening a wider spectrum of potential infrastructural erosion.

Chapter 3 lays down the normative foundations of the investigation with respect to populism as an ideational construct. The main claim is that populism distorts democracy and corrupts the rule of law. More precisely, populism distorts democracy in depriving the democratic process from the requirements of deliberation and representation, which I take as constitutive of democratic legitimacy. The rule of law (thinly or thickly defined) is not only distorted – it is corrupt.

Chapter 10 offers a summary of the structure, methodology, and findings of the book. It highlights the interdisciplinary nature of the investigation, in particular how a philosophically grounded argument can bear upon the reasoning of the Court while simultaneously addressing a pressing societal challenge.

Chapter 4 explains the key parameters of the Court’s adjudication and the role ‘democratic society’ plays in the Court’s reasoning. I explain the rise of ‘procedural review’ as a facet of subsidiarity and highlight implications for the proportionality analysis of the Court and their relevance in the populist context. It also explains how ‘democratic society’ can be used heuristic device to explore the Court’s interpretive equipment and identify the principled link between proportionality and democracy.

In Chapter 10, we conclude with an overview of the broader themes seen throughout this work, showcasing the tell-tale signs of innovation failure. These patterns go to the core of our work, lessons learned from past innovations that can help us to avoid repeating similar mistakes in the future. No one, not even the cagiest upgrader, is going to be able to predict every new technology that will succeed or flop. But with this mindset, you can avoid some of the more obvious traps that investors, politicians, and the public continue to fall for, while valuing the evidence-based alternatives we so often neglect.