This paper examines the regulation of ‘personhood’ through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psycho-social, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers.

The paper investigates and theorises different forms and patterns of resistance to international courts (ICs) and develops an analytical framework for explaining their variability. In order to make intelligible the resistance that many ICs are currently facing, the paper first unpacks the concept of resistance. It then introduces a key distinction between mere pushback from individual Member States or other actors, seeking to influence the future direction of a court's case-law, and actual backlash – a critique triggering significant institutional reform or even the dismantling of tribunals. On the basis on the proposed theoretical framework, the paper provides a roadmap for empirical studies of resistance to ICs, considering the key contextual factors necessary to take into account in such studies.

The article draws on two Office of National Statistics’ Omnibus sample surveys to provide the demographic context for living-apart-together.The Omnibus sample surveys for this project were funded by the ONS and by the ESRC (grant no. L326253054). The ESRC grant also supported the qualitative research, and we are grateful to Sophie Sarre and Jennifer Burton, who organised and undertook the interviews. The second part of the paper begins to explore the meanings of this form of partnership through interviews conducted with a sub-sample of respondents to the second survey, conducted in April 2004. The exploratory study complicates our understanding of the range of partnership statuses, which in turn has implications for policymakers grappling with whether and how to regulate different statuses in different ways. We conclude that living-apart-together is a significant form of partnership in Britain, and that it may take place at different points in the lifecourse. We explore the idea that this form of partnership further signals the spread of ‘selfish individualism’ and a ‘flight from commitment’. We find instead that living-apart-together represents a different kind of shared life to those involved from that they perceive to characterise co-residential relationships.

Functional magnetic resonance imaging (fMRI) is currently the most advanced technique for measuring and depicting brain function. Functional MRI studies abound in neuroscience, psychiatry and psychology. Inevitably, fMRI-based evidence will be offered in court as proof of matters involving parties’ mental states and capabilities. This paper analyses the likely admissibility of fMRI testimony and images. Cases involving other types of functional neuroimaging (PET and SPECT), which may shed light on judges’ receptivity to fMRI evidence, are briefly surveyed. The conceptual and methodological underpinnings of fMRI are then explored, prompting basic questions about the evidentiary reliability and relevance of fMRI results. The first reported case involving fMRI evidence, which raises several of these questions, is described. Finally, the admissibility and probative value of the fMRI images themselves are discussed. Assuming that the expert testimony that the images are offered to illustrate is admissible, it is argued that the law can obtain the benefits of fMRI science while minimising the judgmental risks by allowing triers of fact to see the images and encouraging experts and lawyers to educate the triers to interpret the images properly.

While spatial justice could be the most radical offspring of law’s recent spatial turn, it remains instead a geographically informed version of social justice. The majority of the existing literature on the subject has made some politically facile assumptions about space, justice and law, thereby subsuming the potentially radical into the banal. In this article, I suggest that the concept of spatial justice is the most promising platform on which to redefine, not only the connection between law and geography, but more importantly, the conceptual foundations of both law and space. More concretely, the article attempts two things: first, a radical understanding of legal spatiality. Space is not just another parameter for law, a background against which law takes place, or a process that the law needs to take into consideration. Space is intertwined with normative production in ways that law often fails to acknowledge, and part of this article is a re-articulation of the connection. Second, to suggest a conception of spatial justice that derives from a spatial law. Such a conception cannot rely on given concepts of distributive or social justice. Instead, the concept of spatial justice put forth here is informed by post-structural, feminist, post-ecological and other radical understandings of emplacement and justice, as well as arguably the most spatial of philosophical discourses, that of Deleuze–Guattari and the prescribed possibilities of space as manifold.

In recent years homophobic bullying has received increased attention from NGOs, academics and government sources and concern about the issue crosses traditional moral and political divisions. This article examines this ‘progressive’ development and identifies the ‘conditions of possibility’ that have enabled the issue to become a harm that can be spoken of. In doing so it questions whether the readiness to speak about the issue represents the opposite to prohibitions on speech (such as the notorious Section 28) or whether it is based on more subtle forms of governance. It argues that homophobic bullying is heard through three key discourses (‘child abuse’, ‘the child victim’ and ‘the tragic gay’) and that, while enabling an acknowledgement of certain harms, they simultaneously silence other needs and experiences. It then moves to explore the aspirational and ‘liberatory’ political investments that underlie these seemingly ‘common-sense’ descriptive discourses and concludes with a critique of the quasi-criminal responses that the dominant political agenda of homophobic bullying gives rise to. The article draws on, and endeavours to develop a conversation between, critical engagements with the contemporary politics of both childhood and sexuality.

This paper aims to summarise the current understanding and literature around Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). It provides a brief history of the key terms associated with the right to equal recognition before the law and encompasses both academic writing in this area and General Comment No. 1 from the Committee on the Rights of Persons with Disabilities. The content is intended to provide readers of this Special Issue with a general understanding of developments surrounding Article 12 so they can fully engage with the other papers within this Special Issue and with the content of the Voices of Individuals: Collectively Exploring Self-determination (VOICES) project as a whole.

Transitional justice discourse is generally accepted as having its foundations located in the theoretical, policy and practical implications of dealing with past human rights violations in societies that have experienced either repressive politics or violent conflict. Many theorists and policy-makers resolutely assume or defend the notion that ‘dealing with the past’ is where the debates about, and contribution of, the transitional justice paradigm uniquely lie.2 Understood in this way, transitional justice as a field of study has grown exponentially, comprising theoretical debates, the comparative assessment of domestic accountability schemes, international criminal justice, the study of truth commissions, and ethical-legal debate concerning the morality of compromise on accountability for gross and systematic violations of human rights.

This foreword, building on the previous work of its authors,3 extends and expands our contention that transitional justice in this narrow sense must be located in a broader and more problematised understanding of justice in contemporary transitions. We also use the opportunity provided by this symposium to highlight an expansion of conceptual horizons being carried out at the Transitional Justice Institute (University of Ulster), and the innovative approach to the transitional justice field being advanced by a group of diverse inter-disciplinary scholars. The approach advocates both drawing on other disciplines, and firmly supporting parallel disciplinary fields to work alongside a legal research agenda; affirming the importance of rigorous cross-jurisdictional comparisons; and utilising empirical and socio-legal methodology to advance legal inquiry.

Article 12 of the Convention on the Rights of Persons with Disabilities has created a revolution in legal-capacity law reform. It protects the right to exercise legal agency for people with disabilities with more clarity than any prior human rights instrument. This paper explores what constitutes an exercise of legal agency and what exactly Article 12 protects. It proposes a definition of legal agency and applies it to the lived experience of cognitive disability. It also uses a republican theory of domination to argue that people with cognitive disabilities who are experiencing domination are forced to assert legal agency in even daily decision-making because of the high level of external regulation of their lives and the ever-present threat of others substituting their decision-making. It identifies Article 12 as a tool for protecting such exertions of legal agency and curtailing relationships of domination.

This paper will analyse instances and threats of withdrawal from the Inter-American Court of Human Rights (IACtHR) in order to assess whether those cases can be qualified as backlash. Backlash often serves as an umbrella term for any form of disagreement, hence we differentiate ‘backlash’ from closely connected concepts such as ‘contestation’ and ‘resistance’. In the empirical part of this paper, we examine four cases of withdrawal from the IACtHR or threats thereof, namely Trinidad and Tobago, the Dominican Republic, Peru and Venezuela. The case-studies revealed that the criticism against the IACtHR is fuelled by a combination of three conditions, namely costs of membership, the domestic political system and the domestic impact of the judgments. Ultimately, the specific framework of the IACtHR allows innovative starting points to manage state discontent, in particular the two-tiered structure, the alliance with civil society and the presence of compliance partners within the state.

The UK Mental Capacity Act provides an important legislative framework for protecting persons who are vulnerable, by virtue of partial or total lack of capacity, from abuse, coercion, exploitation, disrespect or unwarranted intrusions on their privacy and liberty. In this article we argue, however, that in order to effectively implement the Act's governing principles and promote the autonomy of persons whose capacities are impaired, health and social welfare professionals must go beyond a primarily cognitive approach to capacity assessment and refer to a range of more demanding autonomy conditions relating to authenticity, diachronic coherence and consistency, accountability to others, and affective attitudes towards oneself. We suggest that these conditions are in fact implicit in the guidelines, scenarios and practical advice contained in the Act's accompanying Code of Practice. To ground our analysis, we discuss two cases of end-of-life decision-making, and consider how these cases might have been assessed had the Mental Capacity Act been applied. We also address the question of whether the conditions for autonomy we identify raise the bar too high to be met by persons who are vulnerable because their capacity is partially compromised.

Our increasingly cosmopolitan discipline needs to be underpinned by a revival of the idea of general jurisprudence, in which generalisations – conceptual, normative, empirical, legal – about legal phenomena are treated as problematic. This paper argues that, as part of this, analytical jurisprudence should broaden its focus not only geographically, but also in respect of the range of concepts, conceptual frameworks, and discourses that it considers. How far is any of our current stock of concepts adequate for talking meaningfully across legal traditions and cultures? Which concepts ‘travel’ relatively well or badly and why? Such questions are illustrated with reference to discourses about legal rights, the treatment of prisoners, and corruption.

Over the last few years, legal scholars, policy-makers, activists and others have generated a vast and rapidly expanding literature concerning the ethical ramifications of using artificial intelligence, machine learning, big data and predictive software in criminal justice contexts. These concerns can be clustered under the headings of fairness, accountability and transparency. First, can we trust technology to be fair, especially given that the data on which the technology is based are biased in various ways? Second, whom can we blame if the technology goes wrong, as it inevitably will on occasion? Finally, does it matter if we do not know how an algorithm works or, relatedly, cannot understand how it reached its decision? I argue that, while these are serious concerns, they are not irresolvable. More importantly, the very same concerns of fairness, accountability and transparency apply, with even greater urgency, to existing modes of decision-making in criminal justice. The question, hence, is comparative: can algorithmic modes of decision-making improve upon the status quo in criminal justice? There is unlikely to be a categorical answer to this question, although there are some reasons for cautious optimism.

On the basis of detailed interviews of females aged between fifteen and twenty-six years with a diagnosis of anorexia nervosa we argue that the autonomy of people with this condition may be severely compromised in four ways, particularly in relation to eating and weight. First there are problems with agency. Second, affective components, particularly anxiety, can dominate beliefs such that the grounds for making a decision may differ from the reasons given in justification. Third, the interactions between the affective components and the objective evidence lead to substantial inner conflicts with resulting lack of stability in preferences and beliefs. Fourth, this lack of stability leads to concerns around identity and authenticity. We argue that some of the ways in which autonomy is compromised reduce competence to decide on treatment. We suggest that these results may be relevant to other mental disorders and have clinical and policy implications.

This article interrogates the connections between normativity and geographical space. Specifically it focuses on the biopolitical discourses that operate around the idiom of the vulnerable female trafficked migrant in the United Kingdom. The article’s structure and argument question how state parties frame the notion of female vulnerability as a distinct biopolitical category. I argue that this process produces and sustains the perceived need for biopolitical regulation of the national community. I question how the state’s regulation of the bodies and behaviours of female trafficked migrants is entangled with anti-immigration agendas that aim to extend the power of the state extra-territorially.

The existing legal definition of rape in England and Wales is gendered, only recognising men as offenders. The law also only recognises as victims of rape those who are penetrated by a penis, either vaginally, anally or orally. This therefore excludes the female perpetrator–male victim paradigm, and more specifically those cases where male victims are ‘forced to penetrate’ female perpetrators. This paper argues that consideration needs to be given to legally recognising and thus labelling forced-to-penetrate cases as rape. Applying a methodology that draws upon the lived experiences of male victims, it is argued that there are significant similarities between compelled-penetration cases and those cases legally recognised as rape, not only because they both involve non-consensual penile penetration, but because there are clear similarities in the aggressive strategies used by perpetrators and the subsequent harms experienced by victims.

This reflection responds primarily to the papers on legal agency and state intervention, with brief comments on the two other papers. The concept of transformative equality, developed in jurisprudence under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), can promote a deeper understanding of the rights of persons with disabilities.1 In particular, it is useful to address power relations between disabled and non-disabled persons not only with respect to family members and medical professionals, but also in the institutions of law and the state.

This article explores the influence of economics on the demand for, and deployment of, indicators in the context of the World Bank's investment climate campaign. This campaign is characterised by an emphasis on marketisation, mathematisation and quantification, which are respectively the normative, analytical and empirical approaches of choice in mainstream economics. The article concludes that economics generally, and indicators in particular, have brought a certain discipline and energy to the field of law and development. But this ‘progress’ has often been at the expense of non-economic values and interests, and even of our ability to mourn their loss.

What will be the consequences for policing as cities become increasingly ‘smarter’? The emerging questions about policing and the smart city have thus far focused primarily on the increased surveillance capacity that a highly networked urban setting provides for law enforcement. More cameras and sensors will mean more watching and less freedom from being watched. The perception of ubiquitous government surveillance might quell dissent and inhibit free expression. As a result, concerns about policing and the smart city echo other responses to surveillance technologies. This essay proposes a different analysis: as cities become ‘smarter’, they increasingly embed policing itself into the urban infrastructure. Policing is inherent to the smart city.

This article analyses the EU Commission's policy-based approach to regulating Corporate Social Responsibility (CSR) and the role of international human rights law as a normative source for the regulatory output in two initiatives launched in 2002 and 2006. The article argues as a starting point that the understanding of CSR as ‘beyond law’ tends to shroud the contributions that international human rights law and legal theory based regulatory technique lend to CSR normativity and regulation, not only outside the EU but also within. The EU experience shows that due to power relations and their impact on multi-stakeholder negotiations and their outcome, this potential does necessarily unfold. It also shows that the procedural design of reflexive multi-stakeholder regulatory processes is significant for bringing forth the normative contributions of international law to CSR in public–private regulation. Finally, the article suggests that within the public policy context in which EU CSR regulation is emerging, the normative role of international human rights law which the Commission suggests for CSR in Europe and the application of the reflexive regulatory technique contribute to a substantive as well as procedural juridification of CSR, especially in the formative stage of defining CSR normativity. The latter adds a significant new perspective to the understanding of CSR and its relation to law, although it need not conflict with the understanding of CSR being ‘voluntary’ in the sense of action beyond direct legal obligations.