‘I Can’t’: Capacity to Marry and the Question of Sex

To some extent the nature of the marriage contract has always been ‘about’ sex. Yet it is only in recent years that sex has become an explicit aspect of the legal test of capacity to marry. This paper explores how that test has been developed by the courts since the late 19th century. Through an examination of the case law it traces the nature of the relationship between sex and the capacity to marry; explores how capacity to consent to sexual relations has become a prominent strand within capacity to marry; and asks whether one effect of that prominence has been to marginalise the necessity for an individual to understand certain other important aspects of the marriage contract when assessing his or her capacity to marry.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

The Origins of ‘Alien Status’ in the English Common Law

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance.     

Legal Imaginaries and the Anthropocene: ‘Of’ and ‘For’

Law and Critique - This reflection contrasts the dominant imaginary underlying ‘law of the Anthropocene’ with an imaginary reaching towards ‘law/s for the Anthropocene’. It...     

‘Not without the Consent and Goodwill of the Common People’: The Community as a Legal Authority in Medieval Sweden

The article investigates the legal authority of the people in later medieval Sweden. Three features are especially focused on. The first aspect of communal legal authority is the representation and participation of the local laity in the judicial process as co-judges, members of the nämnd, the Swedish equivalent of the jury, or town councillors. They also acted as surveyors, compurgators and inspectors in legal disputes. The second aspect is the role of the community, the people of the province, as lawmakers. Finally, the article looks at the role of medieval Swedish communities in choosing judges, juries and parish priests as well as electing kings. The article argues that the legal authority of the people in medieval Sweden was influenced by and reformulated through the church by learned doctrines on majority decisions and the quod omnes tangit maxim. After the Middle Ages, the nämnd and the representation of the peasant estate at parliament became some of the constituents of the national legal identity of Sweden vis-à-vis other countries.     

‘Life is Not Simply Fact’: Aesthetics,Atmosphere and the Neoliberal University

The main objective of this article is to reflect on the way in which a certain neoliberal logic and rationality have become common-sense and to contemplate the possibility of a different aesthetic. The tone or mood of this piece draws on recent work on atmosphere, affect and complexity, which will be used to explore the theme of neoliberalism within the context of the university. In the course of this discussion, I will consider questions such as: how could a different aesthetic influence the university as public space; the curriculum and academic community and friendship? How could a different aesthetic respond to epistemic, ontological and, inherently tied to them, spatial injustice?     

The ‘Hybrid Order’: origins and usage

The hospital direction (Hybrid Order) was inserted into the Mental Health Act (MHA) in 1997 (Crime (Sentences) Act, 1997). It enables higher courts to direct hospital admission for offenders, whilst still imposing a prison sentence. The origins of the ‘Hybrid Order’ and its patterns of usage are examined. Comparisons are made with its Scottish equivalent, Section 59A of the Criminal Procedure (Scotland) Act 1995. Both the ‘Hybrid Order’ and Section 59A have been used infrequently. This may reflect the fact that they were strongly resisted on ethical grounds at their point of inception and that they force the psychiatrist into the position of ‘punisher’, rather than ‘treater’. Since the 2007 Amendment of the MHA in England and Wales which expanded the remit of the ‘Hybrid Order’ to include all legal categories of mental disorder, not solely psychopathy, its use has unsurprisingly increased – this article delineates the considerations that need to be given in its recommendation.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

‘The rules are all over the place’: Mass Observation,time, and law in the COVID-19 pandemic

This article analyses practices of pandemic time making that surrounded the imposition and communication of laws restricting daily life in parts of the United Kingdom in spring 2020. With colleagues, we commissioned a Mass Observation Project directive in summer 2020, asking contributors about their everyday experience of time during the COVID-19 pandemic. We analyse how legal temporalities emerge across 228 responses. Initially, law making seemed belated, missing the disruptive temporalities of the pandemic. Once they arrived, pandemic rules were sudden, changeable, and confusing. Mass Observation writers forged clusters of improvised practices – tactics of anticipation – to cope with these unsettling temporalities. Meanwhile, the Hansard Society, the Joint Committee on Statutory Instruments, and legal commentators argued that ‘fast-track’ pandemic law making was error ridden, putting the public at risk of unwitting criminal liability. Attentive to ‘polyrhythmic’ temporalities operating across fields of experience and action, our study underlines the contradictory qualities of apparently resonant constructions of legal time.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

The ‘unwanteds’ and ‘non-compliants’: ‘unsupported mothers’ as ‘failures’ and agents in Australia’s migrant Holding Centres*

Abstract

Ideas of assimilated citizenship are inherently gendered and during Australia’s post-World War Two migration boom they were deeply and explicitly invested in marriage, children and domesticity. In this period of social conservatism and economic boom, assimilation rhetoric functioned as a reassuring mirror for the host population, promoting the dream of prosperous family life as the ultimate aspiration for refugees and migrants. The role of immigration Holding Centres within this vision was to provide a context in which migrants and refugees could take their first steps towards accomplishing this dream. These Centres of necessary temporary residence were designed as sites of transition towards autonomous, assimilated family life. However, those families headed by single mothers, often referred to in government records as ‘unsupported mothers’, had limited opportunities to live up to such images of assimilation, or even to comply with the economic imperatives of the migration scheme that had brought them to Australia. Based mainly on Department of Immigration records, this article demonstrates that despite recognising the long-term economic and social prospects their children represented, government agencies viewed many unsupported mothers as system failures. They attempted to remedy the situation by turning these women into live-in domestic workers, at times placing pressure on them to institutionalise their children in order to facilitate this, thereby prioritising their compliance with economic imperatives over support for their parenting. Within the limited scope of their agency, unsupported mothers responded by attempting to negotiate the terms of their compliance or simply refusing to comply. For the latter group, Holding Centres became a more permanent home. This permanence is read here as a gendered form of resistance to a system that struggled to foster their economic self-reliance without compromising their capacity to be mothers.     

High Policing Theory and the Question of ‘What is to be Done?’

Within the field of high policing theory it has become increasingly difficult to pose the question of ‘What is to be done?’ in ways that do not result in a pragmatic accommodation of existing political arrangements. This essay proposes a way of reanimating the normative impulse of earlier high policing theory such that this outcome is exceeded. It does so by drawing upon Fredric Jameson’s distinction between representation and representation in motion, such that the emergent state of normativity takes the form of normativity as a representation of itself in motion. This form of normativity draws upon the performative character of the power that is particular to the practices associated with high policing. The proposition is illustrated with normative responses made to instances of political policing within the New Zealand context.