The COVID-19 crisis has been accompanied by an extensive use of indicators, such as those related to COVID infections and deaths, but also a good number of COVID policy indicators. This paper discusses these indicators from the perspective of a legal scholar with an interest (and some expertise) in comparative law and empirical legal studies. This means that this paper does not engage in the details concerning epidemiological and medical issues of COVID infections and deaths. Rather, it focuses on two main issues: first, it develops and maps a general causal scheme of indicators and their underlying real-world phenomena in the COVID crisis; second, it shows how such a causal scheme has been, and can be, applied in comparative empirical legal research. Yet, it also notes the difficulties of proving causal relationships and some attempts to overcome them.

This comment responds to a central issue posed by Professor Tushnet as to the way in which democracies control the exercise of emergency powers. Sands believes that ‘law’ and ‘politics’ are not mutually exclusive, and that the relationship between them suggests that a general theory on the interplay of political and legal factors in controlling the exercise of emergency powers remains elusive.

The three books reviewed here all address the question of the efficacy of international law and advance concerns about its future trajectory, albeit in contrasting ways. As has been well documented, the role of international law – specifically in the regulation of the use of force – has undergone significant scrutiny in the post-Cold War era. To a much greater extent than during the Cold War, contemporary conflicts and crises are invariably discussed with reference to international law, and the legality of a particular use of force has become a significant factor in assessing its legitimacy; one need only think of the importance placed on the legality of the 2003 invasion of Iraq. This increase in prominence suggests that international law has become more important, and unsurprisingly those used to the discipline's previous role as exotic curio have welcomed this sudden promotion (Robertson, 2000).

We are sympathetic to the research aims of the two books examined by this symposium and their desire to understand law's role in generating and contesting social injustice. We are also intrigued by the proposal in the Introduction to this symposium, notably to expand the normative reach of the rule-of-law ideal to private actors, in order to transform it into an ally of counter-hegemonic action. In our research, we share a similar research focus (development projects), methodology (case-studies) and concerns (harmful effects of development interventions) with the authors of the two books. Accordingly, in this contribution, we want to think together with the editors of the symposium – by examining the case-study of the Hidroituango project in Colombia (hereinafter, ‘Hidroituango’) – whether the rule of law can indeed be reimagined to limit the arbitrary exercise of power by private actors, and what benefits this might create for dealing with social injustice. However, since neither Bhatt nor Lander advances an explicit account of rule of law in their books, our critique in this piece is addressed not at them, but rather at the theorists and advocates of rule of law as a political ideal.

This paper seeks to explore the relationship between law and morality and its relevance for establishing the legitimacy of international criminal justice (ICJ) within the context of international trials. At present, imperatives for peace and reconstruction in conflict societies are divorced both conceptually and practically from the process of punishment in international criminal trials. It argues that, in order for international trial justice to move beyond partial forms of retributivism requires a profound re-alignment of the rationales underpinning international penality and a merging of retributive and restorative justice forms. The paper suggests that the resolution of ‘truth’ must go further than this by implicating penal law and process as crucial determinants of ‘legitimate’ strategies for intervention, thereby enabling a wider choice of consequent resolutions. The paper suggests that the intrinsic value of international criminal process lies in its capacity to confront the relativism of ICJ by providing the means to engage with its plurality and so increase its legitimacy for all victims and communities affected by social conflict and war. In so doing it considers how law may be transformed into normative guides to conduct and examines the relationship between the processes of legal reasoning and sentence decision-making in international criminal trials.

This article addresses the significant research gap concerning the regulation of surrogacy intermediaries in China’s rapidly growing surrogacy market. Employing a ‘law in context’ perspective, it explores the question of how to effectively regulate surrogacy intermediaries in the Chinese context. Situated within China’s unique socio-cultural landscape, where procreation carries profound significance, the study navigates the complexities of surrogacy regulation, including ethical dilemmas, rights infringements and regulatory ambiguities. The article advocates for the regulation of surrogacy in China to prevent possible exploitation, referencing three international models: prohibiting commercial surrogacy, governing non-profit surrogacy organisations and imposing duties on for-profit surrogacy agents. The aim is to construct a robust, context-sensitive regulatory framework for surrogacy in China, focusing on identifying suitable intermediaries and defining the scope of effective regulatory oversight.

Mark Tushnet’s paper is an interesting extension of his recent work on how constitutional democracies can control the use of emergency powers. His analysis is useful in drawing attention to the often-overlooked impact of political dynamics in times of emergency. However, Tushnet is too ready to accept that political processes will be able to control the grant and use of emergency powers. He also is too quick to draw a sharp dichotomy between effective political and ineffective legal processes. Political processes can be active and useful in reining in the excesses of emergency powers, but usually only if they play out against the backdrop of a vibrant constitutional culture where the potential for abuse of emergency powers is recognised. The impact of legal and supranational controls plays an important role in shaping this constitutional culture, in particular by ‘dampening’ down the abuse of emergency powers and limiting the scope of action available to the executive. Focusing upon the potential of political means alone to control the application of state power in emergency states of exception is to underestimate the capacity of wider constitutional dynamics to play a key role, even if the political arena may be where the ultimate battles are fought out.

The theme of the book symposium ‘The Rule of Law in Transnational Development Projects’ is, as Bhatt's Concessionaires, Financiers and Communities (2020) and Lander's Transnational Law and State Transformation (2020) highlight, ripe for critical reflection. The two books reveal the power wielded by private for-profit actors in the co-constitution of legal norms, often at the expense of local communities in development-investment settings. The co-constitution of legal norms by private actors via ‘contracts’, ‘policies’ and ‘intermediaries’ (Bhatt, Lander and Taekema, Book Symposium Introduction in this issue) development permeates rule of law in the public sphere, including in ways that affect the application of domestic and international legal norms relating to human rights. Of course, rule of law may be defined by ‘thick’ conceptions … as a just system of laws ‘consistent with international human rights norms and standards’ (UN Secretary General, 2004, para. 6) or ‘thin’ conceptions with more formalistic requirements that do not prescribe political or social values. Deontological questions aside, even in its ‘thinnest’ conception, rule of law means that legal norms ‘should be publicly promulgated; be predictable in their application; apply to all citizens, including government officials; and be subject to some form of neutral adjudication in the event of disputes as to their interpretation or application’ (Trebilcock, 2011, p. 209). Yet, rule of law has often been applied ‘to favour entrenched elites over resistance groups, vested interests … over civil disobedience, official actors over unofficial actors and property owners over protestors’ (Simpson, 2012, p. 9).

I have long felt that Peter Fitzpatrick's 1987 paper, ‘Racism and the innocence of law’, should be closely studied by all law students during, or shortly after, their induction to the study of law. These concise notes on the paper are written primarily in tribute to a friend, colleague and mentor but, in writing them, I hope also to demonstrate how this early instance of a theory about how law is intertwined in racial capitalism could be taught in those law schools that harbour ambitions to be not only critical, but also decolonial. Inevitably, in such a short piece, choices have had to be made about which aspects of the paper to foreground and which to leave out entirely. I trust that my decision to focus on those aspects that can be more readily comprehended by a student with limited knowledge of legal theory and substantive fields of law will not be thought to have unduly watered down its meaning.

This paper compares two judgments of constitutional courts (French and German) assessing the constitutionality of statutes concerning veil-wearing and focuses on the underlying conceptions of ‘living together’. This means that what is actually compared is the self-understanding of the respective majority in the two societies as stated in the decisions. This is done by disassembling the concept of ‘living together’ into three elements: the notion of the individual, the meaning of belonging to the national community and the space accorded to religion in public. Each section of this paper examines one of these elements as they are entailed in the judgments and positions them critically within the respective legal cultural and historical contexts. The main aim of this paper is methodological in nature and is namely to show how comparative legal cultural studies can avoid essentialisation and rather highlight the complexity of every cultural context.

It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court’s subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in ‘vulnerability backsliding’. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the ‘special protection’ to which they were previously afforded courtesy of M.S.S.

This paper offers a revisionist history of the banning of photography in English and Welsh courts in 1925 and explores the contention that a complete rationale for the ban has never been adequately articulated. While existing accounts of the ban have placed emphasis on the outrage caused by press coverage of a handful of sensational murder trials, this paper offers the first comprehensive analysis of photographs of trial scenes in the decades leading up to the ban. In doing so, it argues that the exposure of the legal system to scrutiny by the press and public, made possible by new technologies and reporting practices, was much more pervasive than has previously been suggested. It also contends that, although parliamentarians claimed that the purpose of the ban was to protect vulnerable members of the public, it actually did a much better job of preserving the interests of the legal, political and social elite, including judges, against a backdrop of fears about an increasingly disrespectful populace. More particularly, it is suggested that the ban allowed the state to take back its monopoly over the production, management and consumption of images of judges and other key actors in the courtroom in an effort to re-impose social order and retain the mystery of law.

World War II genocide in Germany, the Rwanda genocide in the early 1990s and the Darfur genocide today are visceral reminders of the devastation and senselessness in the breakdown of human order, a poignant but sad insight into the nature of man and politics. Yet the international community, and by extension the United Nations (UN), have shown a remarkable reluctance to address rape and other forms of gender violence perpetrated during militarised conflicts. Given the psychological toll and devastating effect of rape and the growing number of conflicts, this effort does not speak well to the UN’s commitment to problems that destabilise international peace. It does however raise concerns in the minds of those who see the UN as cherrypicking which conflicts to address while sidestepping others until it is too late. With a view to the Allies’ response to genocide during World War II, this article argues that the realist analytical framework of world politics provides the most plausible basis for explaining variations in international response in militarised conflicts such as Rwanda and Darfur. We present testable hypotheses to conclude that while rape in itself may not be the sole trigger for interventions, states with unstable regimes or sovereign capacity whose government has been deposed are more likely to be the object for interventions or held accountable than those with otherwise stable governments who benefit from the support of a hegemonic power. To victims of crimes of rape caught in militarised conflicts, and to whom justice may come only after a perpetrator regime has been deposed, the conclusion that the decision to intervene is predicated more on political might than justice is disquieting.

Despite the fact that the Millennium Development Goals promised to achieve gender equality and maternal health by 2015, equality remains elusive for too many women. Indeed, austerity, the rise of fundamentalism and the continuing gendered division of labour, especially when it comes to socially necessary but unremunerated care work, have contributed to the increase in gendered inequalities in many areas of social life and in most regions of the world. There is a plenitude of international, transnational and national equality instruments and strategies at the same time as gendered inequality is increasing both within and between nations. These equality instruments and strategies have also had an uneven impact: some women benefit more than others. Moreover, if interpreted in a formal manner, equality can be achieved as much through levelling down men's employment opportunities as by elevating women's life chances.

While access to civil-law institutions has been a traditional area of socio-legal research, access to administrative justice still constitutes an underresearched field. In the field of administrative law, public ombuds institutions represent an important pathway to resolve disputes without invoking a court. To date, we have little knowledge about who uses these ombuds institutions and which factors facilitate access to the ombuds. In this paper, on the basis of our survey among users of the Austrian Ombudsman Board (n = 8,274), we explore the effects of institutional design on the user population. The findings suggest that the two outreach measures – regular consultation days and a weekly TV broadcast – contribute to reducing existing inequalities with regard to users’ sociodemographic characteristics.

This paper sets out the work of Parfit, in terms of Hume and Locke, in terms of the treatment of the person. It considers how ontological status is often a chimerical notion. It sets out the non-bindingness of promises thesis and develops this in terms of intentional action to show how intentional action itself may be impossible. The paper also raises questions about how we define groups, such as criminal groups, in terms of intentionality.