‘therapy’ is a legal concept of considerable import, traditionally juxtaposed with, but separate from, research and also, to some degree, marking the boundaries of legitimate medical intervention. the recent case of simms highlighted these issues, in addition to which novel clinical interventions were the subject of specific recommendations in the bristol royal infirmary inquiry report. this article subjects the notion of therapy to analytical scrutiny and considers the extent of proper clinician discretion to innovate and, albeit much more superficially, how medicine should itself evolve. it advocates a new, more (patient) protective model which should generate confidence in the ethical character of contemporary innovatory practices.

A current trend in sociology characterises the end of the twentieth century as obsessed with risk. Ulrich Beck and Anthony Giddens are perhaps the leading expositors of this theme. Both emphasise a break with the past as the last millennium approached its conclusion, whereby changes in patterns of work, technological developments and the demise of traditional social forms have ushered in a new modernity. In their view, social organisations became more reflexive in their assessments of the circumstances of daily life, at a time when new technologies created the possibility of damage on a global scale. The result in the new social world is a society focused on risk. Some aspects of this assessment are uncontroversial. New technologies have emerged, whilst the role of the nation state has changed since its apogee in the nineteenth century. Other aspects of this new vision are, however, empirically more problematic. Furthermore, the degree to which social changes actually had the effects identified by Beck and Giddens remains an open question. Using the early twentieth-century regulation of mental defectives as a case study, this paper will interrogate this ‘discontinuist’ vision, exploring whether and how our understanding of risk has changed.

The International Journal of Law in Context is a new journal and a new venture. But it takes its cue from, and builds upon, the established series of books which nestle under the overarching title ‘Law In Context’. This imprint has been leaving its impact on legal scholarship for more than 30 years. Many ‘classics’ have been produced. It is fitting that one of the progenitors of the series, William Twining, writes in this inaugurating issue. ‘Law In Context’ has extended the discipline of law, opened up the teaching of law and stimulated scholarship both within and outside the law academy. Not least, it has encouraged the growth of new journals.

Victims of controlling domestic violence who also have family law issues continue to have their safety compromised and to suffer the abusive use of the legal system by perpetrators. A range of conditions contribute to this systemic problem, including the fragmentation of the legal ‘system’ faced by victims, and the emphasis given to contact with fathers and to private dispute resolution. At a more abstract level, unwillingness to look at past conduct and to attribute fault in family law proceedings has led to a failure to pay attention to issues of justice in family law. The possibilities for the use of restorative justice in these cases are explored. It is argued that there are considerable dangers, particularly with a generic model of restorative justice. There is, however, some potential in restorative justice processes which are carefully designed for the domestic violence context. In particular, such processes offer the potential to extend an empowering ‘justice’ rather than a ‘dispute resolution’ frame to a wider range of cases and to overcome the current fragmentation of the legal system. It is argued that our concern should be with how to meet the needs of victims of domestic violence, rather than with the good of restorative justice in theory. In addition, we must continue to work on improvements to the formal legal system as alternatives to restorative justice.

the world bank has in place a set of guidelines for assessing the impact of bank-funded projects on indigenous peoples and requires investors to produce detailed reports and ensure for the provision of adequate compensation. the tendency is to preserve sub-saharan indigenous social structures without inquiring whether a particular indigenous group finds itself oppressed within such structures and wants to escape from them. the bank’s compensation policy should strive to remedy social imbalances if that is the wish of indigenous societies.

The Holocaust sits uncomfortably within general theories of representation. Moreover, the Shoah also raises fundamental problems for our understandings of law and justice within modernity. ‘After Auschwitz’ serves as both a temporal and epistemological signifier within and about law and justice within modernity. This article studies the ways in which a new literary genre of French detective fiction, the néo-polar, which emerged after events of May 1968, has posited new understandings of law, justice and memory of the Shoah. Drawing on the Frankfurt School of Critical Theory and deconstruction, the article argues that the new generation of French writers problematise law, justice and politics through a genre in which ‘fiction’ writes and re-writes history and memory in a search for an impossible justice.

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.

Like all babies, Harry Potter was born vulnerable. Like most babies, he was cared for and loved by those closest to him. When Harry was still an infant, however, the most horrible thing imaginable happened. His parents were killed by Voldemort; in turn, the evil wizard turned his murderous wrath on baby Harry. But Harry was too strong for Voldemort. Without realising it, he destroyed Voldemort’s powers and survived with only a jagged scar on his forehead. Harry Potter may have been vulnerable. But he was also capable of directing the history of the entire wizard world.

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.

understanding law-making requires coming to grips with cognitive schemas, practical wisdom of agents involved in the production of law, as agents may interpret or apply the law according to socially accepted mental schemas developed as a result of socialisation in families, schools, universities and other social settings or in the course of exchange in professional settings. a case study on the conduct of officials of the european commission seeks to illustrate this point. this looks at tacit understandings regulating the conduct of officials of the european commission, engaging in the production of a legal proposal or in the implementation of a legal measure. such interaction may be successful, or less successful, depending on how contentious a legal file is, but is underlined by certain understandings, particular norms of conduct, as to how things are get done. in uncovering shared understandings, the article looks at modes of co-operation in working parties and shared files, promotion procedures, mobility, and how reputation is valued and acquired. the thesis advanced is of important cognitive schema, anthropological category of praxis, regulating the law-making process inside the european commission is compromise.

Aristotle, in his Ethics, argued that good legislators should pay more attention to friendship than to law. Common law, however, has trouble with friendship and has historically taken the view that agreements between friends are unenforceable for lack of intention to create legal relations. The roots of this presumption against amicable agreements lie in theology and antique ecclesiastical case law. Those sources are reviewed here and it is argued that seemingly progressive decisions that accord cohabiting friends legal recognition as spouses have the paradoxical effect of depriving them of contractual capacity. They join traditionally married couples in the ‘amity’ of the household which case law defines as an Alsatia outside of law. It is argued that such a consequence is both unintended and undesirable.

This paper elaborates what the author considers to be a promising alternative to the orthodox ‘conflict model’ of pregnancy: a model of adjudication based on an understanding of pregnancy as a property relationship. The conflict model, which purports to balance the rights and interests of the pregnant woman against those of the foetus, is now widely acknowledged to be unsatisfactory. This paper argues for the complete abandonment of the conflict model in all its guises, and the adoption of a new ‘property model’ of pregnancy. The property model, it is argued, has several distinct advantages over traditional or orthodox ways of debating and adjudicating pregnancy: it explains and justifies features which currently appear as inconsistencies or contradictions in the current law, and provides possible solutions to contested issues such as surrogacy, the ‘rights’ of fathers in decision-making about pregnancy, and the role of the state in setting limits on abortion.

modern life presents us with new, as well as perennial perspectives upon death. this essay explores how we might articulate an apposite conception of rights in relation to death, in a time of a declared respect for individual autonomy and waning adherence to religious belief, and considers these questions with particular reference to the challenges to law and state made by dianne pretty in the months leading up to her death. to such an applicant, with a ‘lay’ experience and apprehension of the role and meaning of law, the prognostications of the court regarding the status of the claim must have seemed surreal indeed – especially where disputable, patchwork value-systems are called upon to lend authority to the decision. the essay concludes that such peregrinations have implications not only for the individual claimant, but for the credibility of law and associated ethics and that the writings of existential philosophers on the subject of death can assist in modelling a more consistent, secular notion of ethics in relation to assisted suicide.

There is a deep, if invisible conflict between our consumer culture and our democratic ideals. It is the result of social processes that, in the last half century, have profoundly transformed how we live and who we are. This paper explores the underpinnings of the condition that many identify as ‘late’ or ‘post’ modernity. Rather than focusing on the intellectual transformations wrought by the Enlightenment, it takes up Charles Taylor’s dialectical account of the relation between the social developments of modernity and changes in social understandings. It then considers the nature and import of our contemporary practices and conditions, their relation to the ‘postmodern’, and their implications both at home and abroad for the ability to sustain meaningful democracies under conditions of globalisation.

This article explores the cultural and legal contexts in which the construction of childhood sexual abuse has taken place over the past three decades in the United States. It also explores a theoretical debate that pits ‘logico-scientific’ accounts of reality against narrative accounts of reality. This debate is of central importance to the study of social and legal responses to childhood sexual abuse, which is categorised in this article as a problem of sexual and domestic violence from a feminist perspective. Some feminists argue that narratives may serve an empowering function in legal and other institutions by giving voice and legitimacy to survivors of sexual and domestic violence. Other feminists argue that narratives of domestic and sexual abuse that fail to identify the social systems of inequality associated with abuse may produce hyper-individualistic and depoliticising accounts of these problems. In this article, the author argues, with Ewick and Silbey, that it is possible to specify the kinds of narratives that contribute to political discourse and confrontation surrounding issues of childhood sexual abuse. The strategic use of social science and expert testimony in criminal and civil court cases, the construction and cultural significance of autobiographical narratives, and the proliferation of narratives in popular media that deal with child sexual abuse are all discussed. It is argued that autobiographical accounts of child sexual abuse, such as those of Dorothy Allison and Maya Angelou, internally illuminate the contexts of inequality which perpetuate abuse and shape the lives of survivors, while discourses in legal institutions and popular media tend to reproduce hegemonic constructions of women, children, and the problem of childhood sexual abuse.

This paper draws on an analysis of case studies from the line of research that examines contractual and working relationships in the aerospace industry (Cullen, Keast and Simpson, 2002; Cullen, Hickman, 2001; Cullen, 2005). These studies found a divergence between the parties’ intended working relationship and the agenda prescribed by formal contracts. The paper proposes that the ramifications of the contractual arrangements engender strains between the dynamic nature of collaborative transactions and the laissez-faire presumption of conflictual relations that underpins western commercial contract law, which in turn influences contractual relations and formal agreements.

The nature of the contribution that fathers make to families is the subject of intense debate by both academics and policymakers. Contact between non-resident fathers and their children has been promoted by government and the courts, but remains difficult to achieve. This paper reports on interview data collected from fathers, mothers and their adolescent children in intact families on the perceptions of fathering practices and the factors that influence them. In addition, the nature and extent of fathers’ involvement with their children is explored in relation to the problem of ‘boundary setting’.

While the traditional, rather distant, breadwinning father has disappeared, there is no evidence from this study of a shift towards the kind of father who takes equal day-to-day responsibility for his children. Rather, the changes in the nature of fathers’ involvement with their children are more subtle, relying to a large extent on an appreciation of the importance of ‘passive care’ and of mediation by mothers. We suggest that these findings have important implications for what might be expected by and of fathers when relationships break-up, and for the development of policies to encourage father involvement.