Thinking Outside the Box – Eliminating the Perniciousness of Box‐Ticking in the New Corporate Governance Code

On 16 July 2018, a new corporate governance code was published. Like previous iterations, it applies on a ‘comply‐or‐explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non‐compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box‐ticking’. Box‐ticking manifests itself firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it, since Adrian Cadbury pioneered the concept of ‘comply‐or‐explain’ in 1992, before proposing an exclusively principles‐driven approach to the corporate governance code which would alleviate box‐ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.     

Bodily Integrity,Embodiment, and the Regulation of Parental Choice

In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non‐therapeutic interventions on children should be considered within a decision‐making framework that prioritizes embodied integrity. This would counter the excessive decision‐making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best‐interests assessment where a non‐therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.     

Commons as possessions: The path to protection of the commons in the ECHR system

The ‘commons’ is not mentioned in the texts of the European Convention on Human Rights (ECHR) or Article 1 of Protocol No. 1 (P‐1). This essay argues that ‘possessions’ — which does appear in the latter — should be interpreted by the European Court of Human Rights (ECtHR) to protect commons against national governments' undue interferences. The argument comprises two parts. First, we analyse the polysemic term ‘possessions’ to show how the current understanding of this category is marred by flawed assumptions and by false dichotomies. Then, we propose an ‘ecological’ construction of legal relationships between subjects and objects. We find support in the ECtHR case law on Article 8. We argue this approach should be extended to Article 1 P‐1: once disentangled from possessive individualism and market paradigms, ‘possessions’ encompass the commons and the category offers a solid legal basis toward the justiciability in Strasbourg of privatisations.     

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

European Economic Governance and Parliamentary Representation. What Place for the European Parliament?

This article aims to analyse the European Parliament's (EP) position in the reform of the European economic governance, in particular after the adoption of the ‘six‐pack,’ the ‘two‐pack’ and the ‘fiscal compact.’ References are made to the involvement of the EP in the decision‐making process that led to the adoption of the new measures as well as to the substantive role assigned to this institution in the new regulatory framework. The article argues that the new provisions, which undermine the budgetary authority of national parliaments while, at the same time, designing a limited role for the EP—though strengthened compared to the previous version of the Stability and Growth Pact—can jeopardise the effectiveness of the landmark principle of ‘no taxation without parliamentary representation’ in the EU.     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

‘Standing’ by: disability hate crime and the police in England

This article discusses the Don't Stand By: Hate Crime Research Report (DSB) (Mencap, 2011), which documents failings in policing practices related to reporting and responding to disability hate crime. Such failings, we argue, constitute not so much direct discrimination but acts of ‘normalcy’. Normalcy is the process whereby taken for granted ideas about what is normal become naturalised; in this respect being non-disabled is seen as normal. Acts of normalcy, whilst less tangible, are by no means less violent or harmful than acts of ‘real discrimination’ or ‘real violence’ (Goodley and Rumswick-Cole, 2011). Systemic and cultural normalcy within the police is not new, as can be seen in the case of Stephen Lawrence.     

Derrida and the Philosophy of Law and Justice

Readings of Derrida’s work on law and justice have tended to stress the distinction between them. This stress is complicated by Derrida’s own claim that it is not ‘a true distinction’. In this essay I argue that ordinary experiences of the inadequacy of existing laws do indeed imply a claim about what would be more just, but that this claim only makes sense insofar as one can appeal to another more adequate law (whether the projection of a new law or an existing ‘higher’ law). Exploring how Derrida negotiates a subtle path between classical Platonism and classical conventionalism about justice, the attempt is made to take seriously Derrida’s aim to affirm the idea of a ‘mystical’ foundation of the authority of laws by taking ‘the use of the word “mystical” in what I venture to call a rather Wittgensteinian direction’.     

Gender,race, bias and perspective: OR,how otherness colours your judgment

This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers’ membership of the jurisprudential community is still marked by ‘otherness’. The argument draws upon my ongoing interest in the law's concern with the concepts of ‘objectivity’, ‘neutrality’ and ‘perspective’. I argue that the legal system is inherently suspicious of ‘otherness’ and most specifically so when ‘others’ occupy positions of ‘judgement’. The consequence is to render decisions made by ‘otherised’ judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of ‘bias’ or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of ‘the judge’ is seen as a limit on their ability to be ‘impartial’. The examples used range across many jurisdictions, from Australia, Canada, the US and a challenge to the impartiality of a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY).     

Responsive Adjudication and the ‘Social Legitimacy’ of the Internal Market

This article is concerned with the social legitimacy of EU free movement adjudication. What does social legitimacy entail within the multi‐level ‘embedded liberalism’ construction of the internal market? How can the objective of free movement (market access) and a commitment to social diversity both be pursued without one necessarily trumping the other? This article seeks to contribute to these questions on the basis of a discussion of what has come to be known as the argument from transnational effects and the development of an adjudicative model that can be termed ‘socially responsive’. On the basis of an ‘ideal types’ analysis of the case law of the Court, it is concluded that responsiveness to Member State social context is lacking in any coherent form in the case law of the Court of Justice of the European Union. However, a responsive model of adjudication can be (re)constructed by streamlining the identified ideal type adjudicative rationales. In the midst of this process of discovery, an operational rationale to establish the substantive (social) scope and reach of the internal market shall be submitted.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

Disciplining Rules? Compliance,the Rules of Interpretation,and the Evaluative Dimension of Articles 31 and 32 of the VCLT

Netherlands International Law Review - In what way do Articles 31 and 32 of the VCLT constitute ‘rules’ of interpretation? In this article, I explore whether these provisions might be...     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

Social Constructionism and Criminology: Traditions,Problems and Possibilities

Over the last twenty years, the prison system, border controls, crime prevention programmes, anti‐terror measures and private security companies have expanded within Europe. This article discusses some of the implications. It will be argued that we are witnessing a paradigmatic shift in the manner in which state‐sanctioned force is employed. The distinction between what is criminal, to be dealt with by the justice system, and what creates a ‘perception of security’—formerly to be dealt with by social policy—is being eroded at both macro‐ (‘war on terror’) and micro‐ (‘public order’) levels. The rule of law is giving way to a security mentality, where force is employed on the basis of risk assessments. Social problems are re‐interpreted as security threats, and met with measures recreating the original threats. This gives the policy field a distinctive rationality of its own.     

Romantic relationships across boundaries: global and comparative perspectives

ABSTRACT

In response to the mass globalization of the twenty-first century and associated migration, a recent boom in social-scientific research has analyzed various manifestations of ‘binational’, interreligious and interracial romantic relationships in the present and recent past. This special issue seeks to historicize this research by drawing on key case studies from around the world and across time and building on relevant historiography and theoretical literature. It seeks to chart how intermarriage and related relationships took shape: who participated in these unions? How common were they, and in which circumstances were they practiced (or banned)? With a global, diachronic and interdisciplinary perspective, we also aim to question some of the categories behind these relationships. Central to these issues, we argue, is the question of boundary formation. Here, we draw on social-scientific research that has emphasized multiple boundaries involved in the creation of identity and groups. We also highlight the intersectionality of those boundaries, meaning that notions about ethnicity, religion, gender and social class often overlap and intersect in various ways when it comes to relationships. Contributions to this collection tap a range of related questions, such as how did geographical boundaries – for example, across national lines, distinctions between colonies and metropoles or metaphors of the ‘East’ and the ‘West’ – shape the treatment of intermarriage? What role have social and symbolic boundaries, such as presumed racial, confessional or socio-economic divides, played? To what extent and how were those boundaries blurred in the eyes of contemporaries? How have bureaucracies and law contributed to the creation of boundaries preventing romantic unions? Romantic relationships, we suggest, provided a key test case for boundary crossings because they brought into sharp relief assumptions not only about community and assimilation, but also about the sanctity of the intimate sphere of love and family.     

Parenthood in Murder‐Suicide News. Idealized Fathers and Murderous Mums

In this article I analyse how parents' lethal violence is presented in Finnish murder‐suicide news reports. I explore how gendered ideas of parenthood and violence affect these constructions. The cases that I am interested in are those with child victims where the perpetrator is either the father or the mother. The theoretical frame of analysis is feminist ethnomethodology, and Membership Categorization Analysis is used as the method. One of the starting‐points is that parenthood is gendered in a way that mothers and fathers have different rights, responsibilities and competences in our culture. In other words, moral orders of fathering and mothering exist. Because of this, women's and men's violent actions towards their own children are understood differently. When a man kills his children and himself he can be portrayed as a caring parent. Instead, in a certain context a woman can be ‘a killer mum’, her act ‘a murder’ and her personality described in the light of the deed. The focus of this article is on gender and family categorization used in murder‐suicide news in Finnish newspapers and the moral orders created in them. I explore the differences by mainly using two case examples: 1) a man who killed his three children and himself, and 2) a woman who killed her husband, two children and herself. The consequences of these newspaper constructions are also considered.     

The Limits of Legal Pluralism in the Roman Empire

The Roman empire was legally pluralistic. But what exactly does this entail in concrete terms? With the growth in historical studies of legal pluralism in the Roman empire, some significant differences in approach have emerged. This article tests and clarifies some of the limits in the current ‘legal pluralism’ conceptual landscape, focussing on disputes and dispute resolution. It is argued that a clearer distinction should be drawn between ‘normative’ and ‘jurisdictional’ pluralism, though both approaches still raise certain conceptual problems. The place of disputes within the family within this wider institutional picture is then taken as a case study in the final part of the paper, and it is suggested that while family disputes can evidence ‘legal pluralism’ in the ‘norms’ sense, there is less to suggest that there were a multitude of officially sanctioned legal fora available for resolving family disputes. As a result, many went beyond the law. This has wider implications for the study of legal pluralism in antiquity and the problem of integrating alternative dispute resolution (ADR) into the pluralistic picture.     

Grey intelligence

This contribution attempts to introduce the concept of ‘grey intelligence’ to denote the increasingly mixed and complex nature of intelligence gathering operations, services and markets. ‘Grey’ here refers to the blurred boundaries between public and private spheres, and to the increasing importance of private, ‘informal’ initiatives and provisions in the gathering, circulation and distribution of intelligence. Situating the phenomenon against the backdrop of what the author has earlier called ‘grey policing,’ the paper explores a number of aspects pertaining to grey intelligence.     

Secret seducers

At the end of the 1990s, a moral panic erupted in the Netherlands about the phenomenon of what came to be known as ‘loverboys’. The suspicion was that a growing number of Dutch girls were being groomed by handsome young men who employed all sorts of devious methods to prepare their girlfriends for life as a prostitute. Stories about a new generation of pimps, often of Moroccan origin, regularly appeared in the Dutch media. In this article, based on ethnographic fieldwork on pimps operating in the red-light district of Amsterdam, we describe the ways in which these young men operate and how they justify their behaviour. On the basis of empirical research we intend to present a more realistic picture of what goes on in the prostitution industry and highlight the discrepancy between what is reported in the media and what is actually happening in the prostitution sector. We also examine the background to the moral panic about loverboys and the ways in which these young men were supposedly able to induce many young girls into becoming prostitutes.