This article presents a selective survey of current law and society research in the Netherlands. After a brief historical sketch, it focuses on contemporary Dutch studies on legal effectiveness and several studies on courts and dispute resolution. Based on a review of both fields, I identify two important trends in Dutch law and society research. The first trend is that, since the 1970s, most researchers have been interested in ‘old gap studies’, which primarily focus on the efficacy of law. In recent years, however, public opinion in the Netherlands has become increasingly critical of the Dutch justice system. I argue that this has generated a second trend in Dutch law and society research, which I refer to as ‘new gap studies’. Unlike traditional gap studies, their primary focus is not the efficacy but the legitimacy of law. In the final section, I draw several general conclusions and I look forward to the future of law and society research in de Netherlands.

The paper discusses the (unsteady) evolution of multilateral processes on migration since the 1980s, with a focus on immigration detention as a growing response to migratory movements. It identifies distinct periods leading up to the Global Compact for Migration (GCM). The paper exposes double standards in the treatment of migration at the UN and beyond, connected with states’ view of migration as a toxic topic. While the GCM put the issue of migration back on the global agenda, the paper argues against the claim that the GCM is the first-ever inter-governmentally negotiated agreement covering all dimensions of international migration. This description better fits the 1990 Migrant Workers Convention. Furthermore, the paper illustrates how the GCM poses a threat to human rights protection in the area of migration: given its focus on co-operation and a state-led non-binding approach, it may overshadow existing international norms and widely endorsed standards monitored by UN bodies.

This paper interrogates the depoliticising effects of a seemingly neutral regulatory drive at the heart of the World Health Organization (WHO)'s promotion of traditional medicine. Emerging at WHO in the late 1960s against a political backdrop of decolonisation and pan-Africanism, traditional medicine has continued to be promoted in subsequent decades, culminating in the latest global Traditional Medicine Strategy (2014 to 2023). Yet WHO's promotion and acceptance of traditional medicine have also become increasingly conditional upon its standardisation and regulation – something that appears fundamentally at odds with traditional medicine's heterogeneity. Drawing on insights from critical law and science and technology studies, we suggest that such a process at WHO has done more than simply disqualify the toxic and the dangerous. Rather, it has implicitly and explicitly marginalised and excluded those aspects of traditional medicine that deviate from scientific, biomedical ways of seeing, knowing and organising.

This paper reviews scholarship regarding migrants’ legal consciousness. After discussing the personal, geographic and methodological scope of the reviewed studies, the conceptualisation of legal consciousness is examined in light of evolutions in general legal consciousness studies. Thereafter, factors emerging as shaping migrants’ legal consciousness are analytically clustered at four levels: individual characteristics, relational factors, cultural dynamics, and public policies and discourse. Future research on legal consciousness could shift its gaze towards understudied migrant groups as well as places. We suggest being more explicit regarding the conceptualisation of dimensions of what is ‘legal’ and of ‘consciousness’, and adopting a pluralist approach to law. The analytical grouping of the factors impacting migrants’ legal consciousness may serve as a useful reference point for future research and facilitate a more comprehensive appraisal of the various dynamics shaping migrants’ legal consciousness.

While legal practice and scholarship are driven by the use and understanding of complex legal terminology, there has been little effort to incorporate the humanistic scholarship of anthropologists and historians into theoretical or practical accounts of these words and their usages. This paper attempts to historicise and complicate a term that serves as a bridge or meeting point between the legal and the political; sovereignty has been conceptualised since the sixteenth century as both a framing device that produces unity within the state while establishing mutual equality within the interstate order, and as the capacity to make law without being subject to that law. Recent anthropological literature has challenged the personification implicit in political–theoretical definitions of sovereignty, arguing instead for a theory of sovereignty that can be applied to ‘complicated’, post-colonial contexts, where legal orders are plural or overlapping and the state is weak or non-existent. What such critiques cannot explain, however, is how the concept of the ‘sovereign state’ became so central to political discourse on a global scale. This paper draws upon legal historical case-studies concerned with the production of the colonial or post-colonial state or the deployment of ‘sovereignty’ as a justificatory concept in colonial settings. In doing so, this paper argues for understanding sovereignty both as a practice across time and space that organises legal institutions and as a justificatory strategy in the intellectual and social history of those institutions, an approach that allows scholars to draw upon the insights of political theorists, anthropologists and historians. While primarily intended to instigate a broader interdisciplinary conversation, this paper also suggests a preliminary conclusion: sovereignty has historically been deployed as a means of including that which cannot be considered the same, mediating the colonial tension between ‘otherness’ and legal homogeneity.

The articles in this Special Issue of the journal explore diverse issues, but all in different ways are stimulated by developments in our understanding of the brain. It is coming to be understood that developments in neuroscience can help those who make the law and those who study it use the insights of scientific knowledge to assist in the understanding of human behaviour. Developments in cognitive neuroscience offer new insights into the nature of normative judgement. As Casebeer and Churchland (2003, p. 170) have noted, ‘the neurobiology of moral cognition is a justifiably hot topic’. As Goodenough and Prehn (2004, p. 1713) note, ‘the great advantage of the cognitive neuroscience approach is that we can now bring together psychological models of cognitive and affective process, experimental paradigms, various behavioural and psychophysiological measurements and functional brain imaging techniques’. Greene and Cohen have argued (2004, p. 1775) that neuroscience will probably have a transformative effect on the law, even though existing legal doctrine can, in principle, accommodate its findings. They foresee, and indeed recommend, a shift away from punishment rooted in retribution towards one adopting a consequentialist approach to the criminal law. That the US Supreme Court in 2005 (see Roper v. Simmons) eventually came to view the death penalty as unconstitutional for offenders who committed their offences when under 18 is in part the product of this shift in thinking. Steinberg and Scott (2003) had shown that adolescents did not meet the law’s requirements for rationality and so were unsuitable candidates for the death penalty.

This paper shows that social inequalities are cumulative and occur at each stage of the dispute pyramid, from the identification of a conflict through to satisfaction with its outcome. Based on a large and original survey on ordinary people's representations of and practices within the legal system in France (N = 2,660), our study finds that an individual's contact, or lack of contact, with a legal intermediary, who may be a legal professional or a non-legal professional, has a very significant impact on the decision to take a case to court. Contact with a legal intermediary also influences the individual's satisfaction with the outcome, but not in the same way for all plaintiffs: income is a more determining factor in satisfaction with the outcome in cases where the judge makes a decision than in cases where a solution is found outside the courtroom.

Situated within the larger context of Canadian pipeline decisions, it is argued that pipeline proposals in a geography without pre-existing pipelines are unsuccessful in contrast to proposals repurposing and expanding existing pipelines. The Chippewas of the Thames (the ‘Chippewas’) unsuccessfully opposed Enbridge's expansion, reversal and repurposing to crude oil of the Line 9 pipeline in Ontario, Canada. Analysing the Chippewas’ case within the context of recent oil- and gas-pipeline developments, using a lens of intersectionality focused on identity markers of indigeneity, socio-economic status and geographical location, exposes the naturalised power structures of Canadian law. These structures include the legal institutions of real-property law, Crown ownership of wildlife and fish, implicit ‘standing’ of the economy and assimilation of indigenous rights. Exposing this dichotomy of indigenous rights on paper vs. in practice deepens the consideration of indigenous rights, potentially allowing intersecting oppressions to be addressed.

The intersections of gender, religion and migration status have attracted only limited commentary to date. The significance of migration status as a marker of gender inequality, and one that further increases the burden of intersecting axes of discrimination, requires further scrutiny. This article examines the rise of civic integration requirements within the European Union and the significance of this rise for religious freedoms and complex ideals of gender equality. Particular attention is given to recent developments in the UK and France in the context of wider debates on immigration and integration policies. Against the background of diminishing sovereignty and the expansion of rights to non-citizens, states are rethinking the significance of citizenship and migration status and the criteria to be applied in determining membership and access to the nation-state. The adoption in France of the Charte des Droits et des Devoirs du Citoyen Français marks a further step in the expansion of integration conditions imposed by states, and signals a continuing willingness to deploy juridical forms to enforce such conditions. Of particular concern to this Special Issue are the implications of civic integration requirements for migrant religious women and for feminist engagement with migration laws and the discourse of rights.

In this article I critically analyse the two historical models for conceptualising the child: the protectionist model and the children’s rights model. I argue that both models are inappropriate ways in which to conceptualise the child. Protectionism is paternalistic, essentialises the child, and denies the child a voice. Equally problematic, the children’s rights model presumes the social desirability of the liberal individual, and emphasises rights over relationships, and universal principles over concrete situations. Given the flaws inherent in these models, I propose a third way in which to conceptualise the child based on a feminist ‘ethic of care’. Drawing on the work of proponents of an ethic of care, I consider how the ethic might conceptualise the child, and how it might translate into a family law context.

Focusing on the history of US anthropology between World War II and the high point of the Vietnam War protests in the late 1960s, this paper aims to historicise the assumed epistemological divide between anthropological and legal thinking. It is shown how anthropology as a discipline in the US has restructured some of its basic assumptions and changed its institutional structure in the context of legal interventions in larger struggles, specifically the court-based battles against racial segregation and the legal proceedings related to indigenous land rights before the Indian Claims Commission. Special consideration is given to an analysis of how objectivity is conceptualised in the literature on anthropological expert witnessing: from mechanical objectivity before 1970 to critical objectivity after 1970. The paper concludes with a caveat against exaggerating existing epistemological differences between anthropology and law, and suggests a more pragmatic approach to interdisciplinary communication.

This paper reflects on the conceptual approach adopted, in international practice, to the design and implementation of initiatives to promote the rule of law at the national level. It pays particular attention to the understanding, in international practice, of the relationship between the rule of law, democracy, human rights and development. It does so by looking especially at the practice of the UN, and taking into account many empirical and theoretical studies. After first examining the predominant paradigm in the rule of law field adopted by the international community until 2010, and the evolution of international practice thereafter, it concludes that the observance of the rule of law in a given country is determined by political and economic structures, cultural norms, institutions and laws. On this basis, and acknowledging the critical importance of the adopted concepts of rule of law, democracy and human rights, it finds the increasing recognition by the UN of the mutually reinforcing impact of these notions as adequate. This approach allows greater attention to be paid to several socio-economic and political issues that significantly affect the observance of the rule of law in many developing countries, the main recipients of the work of the international community in this field. Based on these findings, it indicates areas for reform.

Research has rarely investigated the actions bureaucrats take to challenge the status quo of their organisation from within. Proposing a power-analytical approach to voice, exit and everyday resistance as political strategies of challenging the bureaucratic status quo, I study the difficulties of achieving organisational change in a context of structural constraints on junior bureaucrats’ reformative power. During field research in Niger's Refugee Directorate, I found that despite the associated risks, junior bureaucrats criticised their working conditions and, in confidential conversations, the administration. As precarious staff, they often combined criticism with compliance. In frequent acts of semi-private criticism amongst peers and with external actors, they problematised their working conditions and the state, but performed symbolic conformity in the everyday to avoid sanctions. This strategy nevertheless created autonomy for themselves and mobilised external actors for change-making. In rarer acts of direct criticism voiced to their superiors, the junior staff often complied with the same informal solidarities they vocally criticised.

Children tend to be represented as the quintessential victims of the ‘drug problem’, with drug-using parents, particularly mothers, characterised as vectors of the risks posed. Although evidence of drug use is not per se an impediment to retaining care of, or contact with, children (per Lady Hale in Re B [2013] UKSC 33, at para. 143), it does pose one of the greatest challenges to social and political norms about ‘good parenting’, and often has a powerful impact on decisions about care within UK family courts. While there is a considerable body of scholarship assessing criminal justice responses to drug use, there has been little research into how the family serves as an important site for the constitution of drug harms and the making of ‘drugs’ and ‘addiction’. This paper is informed by qualitative analysis of approximately 150 case reports in which drug use has been cited as relevant in the determination of guardianship/parenting. The purpose will not be to contest the difficult decisions that judges had to make in these cases but, using perspectives rooted in Science and Technology Studies and feminist drug scholarship, to remain attendant to the ontological multiplicity of objects that emerge from attempts to stabilise drug harms in legal narratives.

Global social indicators, as a form of governance and soft regulation, exert pressure for change and compliance through the way they compare and rank the relative performance of states or other units. Is it reasonable then to expect the comparisons they make in the process of carrying out such strategic exercises to be accurate and fair? In particular, how far can they, or should they, be required to be faithful to the requirement to ‘compare like with like’. Using as an example the role of indicators in documenting and responding to the current coronavirus epidemic, I investigate the way their hybrid combination of both comparison and commensuration may help to account for the difficulty they have had so far in establishing stable rankings of best practice.

The Revolution of 25 April 1974 had a strong impact on justice in Portugal. Initially, it can be said that there was evidence of a process of democratisation involving the judicial structures, together with effective improvements to conditions allowing for independent and autonomous professional performance. However, in analysing the course of judicial reforms, it can be seen that changes took place more on a legislative level than in terms of the performance of the courts, proving that the evolution of the judicial system still demands a change of the legal culture. Therefore, the objective of this paper is to reflect on the evolution of the legal architecture in Portugal, seeking to determine whether the transition to a democratic judicial system is complete or whether, on the contrary, we are still faced with the process of justice in transition, delaying any changes in the current legal culture.

This paper was delivered as a plenary lecture, designed to respond to the one-day special conference focus upon links between socio-legal studies and the humanities.1 The paper focuses in particular upon the relationship between law and the humanities. It may be argued that the role of empirically sourced socio-legal research is well accepted, given its tangible utility in terms of producing hard data which can inform and transform policy perspectives. However, scholarly speculation about the relationship between law and the humanities ranges from the indulgent to the hostile. In particular, legal scholars aligning themselves as ‘black letter’ commentators express strong opinions about such links, suggesting that scholarship purporting to establish links between the two fields is essentially spurious, bearing in mind the purposive role of law as a problem-solving mechanism. The paper sets out to challenge such assertions, indicating the natural connections between the two fields and the philosophical necessity of continued interaction, given the fact that certain aspects of human experience and nature cannot be plumbed by doctrine or empiricism or even by combinations of the two. Law must be understood to stand at the nexus of human experience, in a relationship of integrity, where the word is understood to mean both morally principled and culturally integrated. In particular, the development of human qualities, of character and moral sensibility informing normative values – and, ultimately, engagement with the world of law – is a process of subtle cultural as well as psychological significance, and may benefit from interrogation deriving from the wider fields of human discourse.

This paper pushes against the successful rhetoric of formal equality by which same-sex couples are the same as different-sex couples and opening existing regimes of marriage to them best recognises their equal moral worth. Drawing on social science research that indicates differences in the economic organisation of same-sex couples, the paper explores the possibility that a different marriage regime for the spouses' reciprocal duties might combine recognition of their equal moral worth with sensitivity to their needs. The study sharpens the understanding of contemporary investments in marriage law for everyone and offers a better justification for formal equality: same-sex couples may be treated identically to different-sex couples not because they are the same, but despite their differences.

This paper describes the ways in which, over the past three decades, law has come to serve as an obstacle in the fight against HIV, and how it contributes to the stigmatisation of, and discrimination against, people living with the virus. It argues that in order to make unsafe law safer, policy-makers, legislators and those responsible for the interpretation and enforcement of law must base their HIV response not on populist morality but on the strong evidence base provided by three decades of clinical, scientific and social research. Drawing on that research and the author's own involvement in policy development in this area, it suggests that rights-based arguments are, while important, insufficient as the basis for delivering the changes that are necessary, discusses the difficulties involved in achieving those changes, and argues that legal scholarship and research has an important role to play in HIV activism and combating the global epidemic.

In the popular imagination, legal proceedings and their rules of law are thought of as paths to unalloyed truth. Both practitioners and scholars know this is often not the case because the law is, as are other domains, riddled with fictions. Indeed, the law sometimes borrows fictions from other domains to help it achieve results that would otherwise be unobtainable. One such place is securities law, in which courts in the United States have borrowed the concept of the ‘efficient market’ from economics to make fraud class actions possible. But that concept is – if not wholly – at least in good measure fictional.