Oñati International Series in Law and Society – serie

Transparency is a fundamental principle of justice. A cornerstone of the rule of law, it allows for public engagement and for democratic control of the decisions and actions of both the judiciary and the justice authorities. This book looks at the question of transparency within the framework of transitional justice. Bringing together scholars from across the disciplinary spectrum, the collection analyses the issue from socio-legal, cultural studies and practitioner perspectives. Taking a three-part approach, it firstly discusses basic principles guiding justice globally before exploring courts and how they make justice visible. Finally, the collection reviews the interface between law, transitional justice institutions and the public sphere.

In many jurisdictions today, life imprisonment is the most severe penalty that can be imposed. Despite this, it is a relatively under-researched form of punishment and no meaningful attempt has been made to understand its full human rights implications. This important collection fills that gap by addressing these two key questions: what is life imprisonment and what human rights are relevant to it? These questions are explored from the perspective of a range of jurisdictions, in essays that draw on both empirical and doctrinal research. Under the editorship of two leading scholars in the field, this innovative and important work will be a landmark publication in the field of penal studies and human rights.

This innovative collection offers one of the first analyses of criminologies of the military from an interdisciplinary perspective. While some criminologists have examined the military in relation to the area of war crimes, this collection considers a range of other important but less explored aspects such as private military actors, insurgents, paramilitary groups and the role of military forces in tackling transnational crime. Drawing upon insights from criminology, this book’s editors also consider the ways the military institution harbours criminal activity within its ranks and deals with prisoners of war. The contributions, by leading experts in the field, have a broad reach and take a truly global approach to the subject.

In the global era, controversies abound over temporary labour migration; however, it has not previously been subjected to a sustained socio-legal analysis on a comparative basis, critiquing the underpinning concepts conventionally accepted as fundamental in this area. This collection of essays aims to fill that void. Complex regulatory challenges arise from temporary labour migration. This collection examines these challenges and the extent to which temporary labour migration programmes can be ethical, equitable and efficacious and so deliver decent work for workers. Whilst the tendency for migration law to divide labour law’s worker-protective mission has been observed before, the authors of the chapters comprising this collection seek not only to interrogate why and how this is so, but to go further in examining the implications and effects of a wide range of regulatory mechanisms on temporary labour migration.

This collection examines the human rights to social security and social protection from a women’s rights perspective. The contributors stress the need to address women’s poverty and exclusion within a human rights framework that takes account of gender. The chapters unpack the rights to social security and protection and their relationship to human rights principles such as gender equality, participation and dignity. Alongside conceptual insights across the field of women’s social security rights, the collection analyses recent developments in international law and in a range of national settings. It considers the ILO’s Social Protection Floors Recommendation and the work of UN treaty bodies. It explores the different approaches to expansion of social protection in developing countries (China, Chile and Bolivia). It also discusses conditionality in cash transfer programmes, a central debate in social policy and development, through a gender lens. Contributors consider the position of poor women, particularly single mothers, in developed countries (Australia, Canada, the United States, Ireland and Spain) facing the damaging consequences of welfare cuts. The collection engages with shifts in global discourse on the role of social policy and the way in which ideas of crisis and austerity have been used to undermine rights with harsh impacts on women.

Is there something distinctive about penology in Europe? Do Europeans think about punishment and penal policy in a different way to people in other parts of the globe? If so, why is this the case and how does it work in practice? This book addresses some major and pressing issues that have been emerging in recent years in the interdisciplinary field of 'European penology', that is, a space where legal scholarship, criminology, sociology and political science meet - or should meet - in order to make sense of punishment in Europe. The chapters in European Penology? have been written by leading scholars in the field and focus in particular on the interaction of European academic penology and national practice with European policies as developed by the Council of Europe and, increasingly, by the European Union.

This book explores the emergent and internationally widespread phenomenon of precariousness, specifically in relation to the home. It maps the complex reality of the insecure home by examining the many ways in which precariousness is manifested in legal and social change across a number of otherwise very different jurisdictions. By applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law to the home, Law and the Precarious Home offers a broader theoretical understanding of contemporary ‘precarisation’ of law and society. It will enable reflections upon differential experience of home dependent upon class, race and gender from a range of local, national and cross-national perspectives. Finally it will explore the pluralisation of ideas of home in subjective experience, social reality and legal form. The answers offered in this book reflect the expertise and standing of the assembled authors who are international leaders in their field, with decades of first-hand practical and intellectual engagement with the area.

Family justice requires not only a legal framework within which personal obligations are regulated over the life course, but also a justice system which can deliver legal information, advice and support at times of change of status or family stress, together with mechanisms for negotiation, dispute management and resolution, with adjudication as the last resort. The past few years have seen unparalleled turbulence in the way family justice systems function. These changes are associated with economic constraints in many countries, including England and Wales, where legal aid for private family matters has largely disappeared. But there is also a change in ideology in a number of jurisdictions, including Canada, towards what is sometimes called neo-liberalism, whereby the state seeks to reduce its area of activity while at the same time maintaining strong views on family values. Legal services may become fragmented and marketised, and the role of law and lawyers reduced, while self-help web based services expand.The contributors to this volume share their anxieties about the impact on the ability of individuals to achieve fair and informed resolution in family matters.

The issue of whether transnational risk can be regulated through a social sphere goes to the heart of what John Ruggie has described as ‘embedded liberalism’: how capitalist countries have reconciled markets with the social community that markets require to survive and thrive. This collection, located in the wider debates about global capitalism and its regulation, tackles the challenge of finding a way forward for regulation. It rejects the old divisions of state and market, citizens and consumers, social movements and transnational corporations, as well as ‘economic’ and ‘social’ regulation. Instead this rich, multidisciplinary collection engages with a critical theme—the idea of harnessing the regulatory capacity of a social sphere by recognising the embeddedness of economic transactions within a social and political landscape. This collection therefore explores how social norms, practices, actors and institutions frame economic transactions, and thereby regulate risks generated by and for business, state and citizens.A key strength of this book is its integration of three distinct areas of scholarship: Karl Polanyi's economic sociology, regulation studies and socio-legal studies of transnational hazards. The collection is distinct in that it links the study of specific transnational risk regulatory regimes back to a social–theoretical discussion about economy–society interactions, informed by Polanyi's work. Each of the chapters addresses the way in which economics, as well as economic and social regulation, can never be understood separately from the social, particularly in the transnational context.Endorsement‘This thought-provoking collection asks the most critical question of our time – how to civilise markets through social accountability and political action. The climate and financial crises we face show how crucial this challenge is. Lange, Haines and Thomas have put together a series of fruitful case studies of the possibilities for embedding economic relationships in social relationships by a series of top-class researchers within their own illuminating and sensitive framing of the issue’.Professor Christine Parker, Professor of Regulatory Studies at Monash University.

The legal position of convicted offenders is complex, as are the social consequences that can result from a criminal conviction. After they have served their sentences, custodial or not, convicted offenders often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. In turn, these legal consequences can have broader social consequences. Legal consequences are often not formally part of the criminal law, but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law, and immigration law. For this reason, they are often obscured from judges as well as from defendants and their legal representatives in the courtroom. The breadth, severity and longevity and often hidden nature of these restrictions raises the question of whether offenders’ fundamental rights are sufficiently protected. This book explores the nature and extent of the legal consequences of criminal convictions in Europe, Australia and the USA. It addresses the following questions: What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited by law?

In the past fifteen years there has been a marked increase in the international scholarship relating to women in law. The lives and careers of women in legal practice and the judiciary have been extensively documented and critiqued, but the central conundrum remains: Does the presence of women make a difference?What has been largely overlooked in the literature is the position of women in the legal academy, although central to the changing culture. To remedy the oversight, an international network of scholars embarked on a comparative study, which resulted in this path-breaking book. The contributors uncover fascinating accounts of the careers of the academic pioneers as well as exploring broader theoretical issues relating to gender and culture. The provocative question as to whether the presence of women makes a difference informs each contribution.

This book offers a unique contribution that examines major recent changes in conflict, negotiation and regulation within the labour relations systems and related governance institutions of advanced societies. The broad scope of analysis includes social welfare institutions, new forms of protest including judicialisation, transnational structures and collective bargaining itself. As the distinguished group of participating authors shows, the accumulation of numerous crucial changes in the interactions of unions, employers, political parties, courts, protestors, regulators and other key actors makes it imperative to reframe the study of collective bargaining and related forms of governance. The shifting dynamics include the growing relevance of multi-level interactions involving transnational entities, states and regions; the increasing tendency of workers and unions to turn to the courts as part of their overall strategy; new forms of solidarity among workers; and the emergence of new populist and nationalist actors. At the same time, sectors of the workforce that feel under-represented by existing institutions have contributed to new types of protest and ‘agency’. Building on classical debates, the book offers new theoretical and practical approaches that insert the study of collective bargaining into the analysis of governance, solidarity, conflict and regulation, as they are broadly construed.

In the global era, controversies abound over temporary labour migration; however, it has not previously been subjected to a sustained socio-legal analysis on a comparative basis, critiquing the underpinning concepts conventionally accepted as fundamental in this area. This collection of essays aims to fill that void. Complex regulatory challenges arise from temporary labour migration. This collection examines these challenges and the extent to which temporary labour migration programmes can be ethical, equitable and efficacious and so deliver decent work for workers. Whilst the tendency for migration law to divide labour law’s worker-protective mission has been observed before, the authors of the chapters comprising this collection seek not only to interrogate why and how this is so, but to go further in examining the implications and effects of a wide range of regulatory mechanisms on temporary labour migration.

The editors’ earlier book Delivering Family Justice in the 21st Century (2016) described a period of turbulence in family justice arising from financial austerity. Governments across the world have sought to reduce public spending on private quarrels by promoting mediation (ADR) and by beginning to look at digital justice (ODR) as alternatives to courts and lawyers. But this book describes how mediation has failed to take the place of courts and lawyers, even where public funding for legal help has been removed. Instead ODR has developed rapidly, led by the Dutch Rechtwijzer. The authors question the speed of this development, and stress the need for careful evaluation of how far these services can meet the needs of divorcing families.In this book, experts from Canada, Australia, Turkey, Spain, Germany, France, Poland, Scotland, and England and Wales explore how ADR has fallen behind, and how we have learned from the rise and fall of ODR in the Rechtwijzer about what digital justice can and cannot achieve. Managing procedure and process? Yes. Dispute resolution? Not yet.The authors end by raising broader questions about the role of a family justice system: is it dispute resolution? Or dispute prevention, management, and above all legal protection of the vulnerable?This title is included in Bloomsbury Professional's International Arbitration online service.

In many jurisdictions today, life imprisonment is the most severe penalty that can be imposed. Despite this, it is a relatively under-researched form of punishment and no meaningful attempt has been made to understand its full human rights implications. This important collection fills that gap by addressing these two key questions: what is life imprisonment and what human rights are relevant to it? These questions are explored from the perspective of a range of jurisdictions, in essays that draw on both empirical and doctrinal research. Under the editorship of two leading scholars in the field, this innovative and important work will be a landmark publication in the field of penal studies and human rights.

The use of extra-territorial intelligence is growing among security, border, and public agencies. Internationally, rapidly evolving efforts to tackle transnational crime entail the exchange of intelligence across jurisdictions and state borders as well as the ‘linking’ of law enforcement operations. This book provides a number of different perspectives from across Europe, Australasia and Canada to examine recent cooperation experiences and the challenges faced in practice.The book brings together scholars from a range of legal and criminological fields to examine the legal imperatives and social parameters that shape international police and justice cooperation and highlights the importance of both trust and clear legal rules to ensure effective cooperation. It focuses on areas where cooperation is now mandated, but where significant issues are raised, including the international and regional methods of information and intelligence exchange and challenges to human rights protection; the coordination of international and regional exchange of evidence, such as forensic bioinformation; police cooperation in international investigations and the added value of formalising investigative strategies across jurisdictions regionally and internationally and the operation, accountability and legitimacy of organisations and institutions of ‘cooperation’ in law enforcement and specific international policing ‘missions’.

This is the first collection to examine the legal dynamics of deinstitutionalisation. It considers the extent to which some contemporary laws, policies and practices affecting people with disabilities are moving towards the promised end point of enhanced social and political participation in the community, while others may instead reinstate, continue or legitimate historical practices associated with this population’s institutionalisation. Bringing together 20 contributors from the UK, Canada, Australia, Spain and Indonesia, the book speaks to overarching themes of segregation and inequality, interlocking forms of oppression and rights-based advancements in law, policy and practice. Ultimately this collection brings forth the possibilities, limits and contradictions in the roles of law and policy in processes of institutionalisation and deinstitutionalisation, and directs us towards a more nuanced and sustained scholarly and political engagement with these issues.

This collection of essays interrogates how human rights law and practice acquire meaning in relation to legal pluralism, ie, the co-existence of more than one regulatory order in a same social field. As a social phenomenon, legal pluralism exists in all societies. As a legal construction, it is characteristic of particular regions, such as post-colonial contexts. Drawing on experiences from Latin America, Sub-Saharan Africa and Europe, the contributions in this volume analyse how different configurations of legal pluralism interplay with the legal and the social life of human rights. At the same time, they enquire into how human rights law and practice influence interactions that are subject to regulation by more than one normative regime. Aware of numerous misunderstandings and of the mutual suspicion that tends to exist between human rights scholars and anthropologists, the volume includes contributions from experts in both disciplines and intends to build bridges between normative and empirical theory.

Transparency is a fundamental principle of justice. A cornerstone of the rule of law, it allows for public engagement and for democratic control of the decisions and actions of both the judiciary and the justice authorities. This book looks at the question of transparency within the framework of transitional justice. Bringing together scholars from across the disciplinary spectrum, the collection analyses the issue from socio-legal, cultural studies and practitioner perspectives. Taking a three-part approach, it firstly discusses basic principles guiding justice globally before exploring courts and how they make justice visible. Finally, the collection reviews the interface between law, transitional justice institutions and the public sphere.

This book investigates how defendants are assessed by criminal justice decisionmakers, such as judges, lawyers, probation officers, parole board members and those involved in restorative justice. What attitudes and emotions are defendants expected to show? How are these expectations communicated?The book argues that defendants, at various stages of the criminal justice process, are expected to show a (more or less) free acceptance of guilt and individual responsibility along with a display of ‘appropriate’ emotions, ideally including ‘genuine’ remorse. It examines why such expressions of individualresponsibility and remorse are so important to decision-makers and the state.With contributors from across the world, the book opens new comparative possibilities and research agendas.

This collection brings together leading international socio-legal and medico-legal scholars to explore the dilemma of how to support legal capacity in theory and practice. Traditionally, decisions for persons found to lack capacity are made by others, generally without reference to the person, and this applies especially to those with cognitive and psycho-social disabilities. This book examines the difficulties in establishing effective and deliverable supported decision-making, concluding that approaches to capacity need to be informed by a grounded understanding of how it operates in ‘real life’ contexts. The book focuses on the UN Convention on the Rights of Persons with Disabilities (CRPD), which recognises the equal right to legal capacity of people with disabilities and requires States Parties to provide support for the exercise of this right. However, 10 years after the CRPD came into force, the shift to legal frameworks for supported decision-making remains at best only partial.With 16 chapters written by contributors from the UK, Canada, Finland, India, Ireland, Spain, Sweden, and Turkey, the collection takes a comparative and interdisciplinary approach. Many of the contributors have been directly involved in law reform processes in their home jurisdictions, and thus can combine both academic expertise and practical, grounded awareness of the challenges of legal change.

This book explores the emergent and internationally widespread phenomenon of precariousness, specifically in relation to the home. It maps the complex reality of the insecure home by examining the many ways in which precariousness is manifested in legal and social change across a number of otherwise very different jurisdictions. By applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law to the home, Law and the Precarious Home offers a broader theoretical understanding of contemporary ‘precarisation’ of law and society. It will enable reflections upon differential experience of home dependent upon class, race and gender from a range of local, national and cross-national perspectives. Finally it will explore the pluralisation of ideas of home in subjective experience, social reality and legal form. The answers offered in this book reflect the expertise and standing of the assembled authors who are international leaders in their field, with decades of first-hand practical and intellectual engagement with the area.

This book addresses the different forms of austerity, contestation and resistance, in order to understand how they relate to one another and the impact they have on the democratic quality of public debates, the trust in public institutions and the legitimacy of law. Contestation of austerity includes not only traditional activism strategies such as human rights litigation and direct democracy instruments, but also new forms of collective action and collaborative resistance. Most importantly, many of the new anti-austerity initiatives also aim to renovate existing modes of democratic decision-making on the European, national, regional and local levels. The book focuses on different types of contesting austerity measures and the interaction between institutional and civil society actors. It will enhance understanding of how the various actors frame not only their goal but also the underlying social conflict to contest austerity and through which means they try to achieve political and legal changes. With 16 chapters written by contributors from Spain, Germany, Greece, Portugal and the UK, the book approaches 3 crucial areas of austerity policies: cuts in payment and pensions, labour law reform, and old and new poverty. In each field, the contributors analyse the processes of decision-making and contestation from 3 perspectives: institutions, democratic theory and societal responses.

This book addresses the different forms of austerity, contestation and resistance, in order to understand how they relate to one another and the impact they have on the democratic quality of public debates, the trust in public institutions and the legitimacy of law. Contestation of austerity includes not only traditional activism strategies such as human rights litigation and direct democracy instruments, but also new forms of collective action and collaborative resistance. Most importantly, many of the new anti-austerity initiatives also aim to renovate existing modes of democratic decision-making on the European, national, regional and local levels. The book focuses on different types of contesting austerity measures and the interaction between institutional and civil society actors. It will enhance understanding of how the various actors frame not only their goal but also the underlying social conflict to contest austerity and through which means they try to achieve political and legal changes. With 16 chapters written by contributors from Spain, Germany, Greece, Portugal and the UK, the book approaches 3 crucial areas of austerity policies: cuts in payment and pensions, labour law reform, and old and new poverty. In each field, the contributors analyse the processes of decision-making and contestation from 3 perspectives: institutions, democratic theory and societal responses.

This innovative collection offers one of the first analyses of criminologies of the military from an interdisciplinary perspective. While some criminologists have examined the military in relation to the area of war crimes, this collection considers a range of other important but less explored aspects such as private military actors, insurgents, paramilitary groups and the role of military forces in tackling transnational crime. Drawing upon insights from criminology, this book’s editors also consider the ways the military institution harbours criminal activity within its ranks and deals with prisoners of war. The contributions, by leading experts in the field, have a broad reach and take a truly global approach to the subject.

This is the first collection to examine the legal dynamics of deinstitutionalisation. It considers the extent to which some contemporary laws, policies and practices affecting people with disabilities are moving towards the promised end point of enhanced social and political participation in the community, while others may instead reinstate, continue or legitimate historical practices associated with this population’s institutionalisation. Bringing together 20 contributors from the UK, Canada, Australia, Spain and Indonesia, the book speaks to overarching themes of segregation and inequality, interlocking forms of oppression and rights-based advancements in law, policy and practice. Ultimately this collection brings forth the possibilities, limits and contradictions in the roles of law and policy in processes of institutionalisation and deinstitutionalisation, and directs us towards a more nuanced and sustained scholarly and political engagement with these issues.

This book offers a unique contribution that examines major recent changes in conflict, negotiation and regulation within the labour relations systems and related governance institutions of advanced societies. The broad scope of analysis includes social welfare institutions, new forms of protest including judicialisation, transnational structures and collective bargaining itself. As the distinguished group of participating authors shows, the accumulation of numerous crucial changes in the interactions of unions, employers, political parties, courts, protestors, regulators and other key actors makes it imperative to reframe the study of collective bargaining and related forms of governance. The shifting dynamics include the growing relevance of multi-level interactions involving transnational entities, states and regions; the increasing tendency of workers and unions to turn to the courts as part of their overall strategy; new forms of solidarity among workers; and the emergence of new populist and nationalist actors. At the same time, sectors of the workforce that feel under-represented by existing institutions have contributed to new types of protest and ‘agency’. Building on classical debates, the book offers new theoretical and practical approaches that insert the study of collective bargaining into the analysis of governance, solidarity, conflict and regulation, as they are broadly construed.

The legal position of convicted offenders is complex, as are the social consequences that can result from a criminal conviction. After they have served their sentences, custodial or not, convicted offenders often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. In turn, these legal consequences can have broader social consequences. Legal consequences are often not formally part of the criminal law, but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law, and immigration law. For this reason, they are often obscured from judges as well as from defendants and their legal representatives in the courtroom. The breadth, severity and longevity and often hidden nature of these restrictions raises the question of whether offenders’ fundamental rights are sufficiently protected. This book explores the nature and extent of the legal consequences of criminal convictions in Europe, Australia and the USA. It addresses the following questions: What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited by law?

In the past fifteen years there has been a marked increase in the international scholarship relating to women in law. The lives and careers of women in legal practice and the judiciary have been extensively documented and critiqued, but the central conundrum remains: Does the presence of women make a difference?What has been largely overlooked in the literature is the position of women in the legal academy, although central to the changing culture. To remedy the oversight, an international network of scholars embarked on a comparative study, which resulted in this path-breaking book. The contributors uncover fascinating accounts of the careers of the academic pioneers as well as exploring broader theoretical issues relating to gender and culture. The provocative question as to whether the presence of women makes a difference informs each contribution.