This chapter examines the ways in which the sovereign, monocultural, and monist state that was dominant in Latin America starting in the nineteenth century has mutated over the last thirty-six years. It begins by offering a description of the initially dominant model and then introduces the multicultural liberal and radical intercultural models that replaced it by politically and legally recognizing the cultural diversity that characterizes Latin American societies. The chapter then explores the discursive and practical challenges generated by illegal normative systems (such as those managed by guerilla or paramilitary groups, or criminal organizations), and by extralegal normative system (such as the regulation of private property in peripheral urban neighborhoods) which compete with the sovereignty of states and official law. The constitutional bloc, the Inter-American Human Rights System, and bilateral or multilateral treaties signed by Latin American states further pluralize legal creation and weaken the concept of absolute state sovereignty. This chapter characterizes these developments as instances of either weak or strong legal pluralism.

In chapter 8 we discussed the defects of consent, whereas here we shall dive deeper into the effects of defects in general. Before doing so, we need to lay the foundations by which to evaluate the legal impact of each defect on civil and commercial contracts. It will be recalled that under the civil law tradition, contracts are predicated on three general pillars, namely: (i) consent, consisting of offer, acceptance and intention to be legally bound; (ii) subject-matter; and (iii) cause. In addition there might, but not necessarily, exist two further requirements (special pillars), namely: (iv) form and (v) delivery.

The trust can be an instrument of great power and influence in managing and maintaining wealth and creating vital rights and obligations. Settlors are given significant freedom as to when and how they create a trust, with few restrictions on the provisions they can include in the trust instrument. But with this conspicuous freedom comes responsibility to ensure that the trust is not abused. Equity will not allow such abuse, and if a trust is considered to have been abused, it may be void or unenforceable. But when will a trust be considered to be abused? Surprisingly, little attention has been paid by commentators or judges to the notion of abuse of trust, although there are particular doctrines that can be analysed as being triggered by an abuse of trust, which have received a significant amount of attention. These include the doctrine of sham trust, illusory trust, defrauding creditors, illegality and fraud on the power. All of these doctrines are examined, common principles are identified and the chapter concludes that it is possible to synthesise from these doctrines a distinct doctrine of abuse of trust which should be expressly recognised.

Equitable remedies grew out of the Chancellor’s aim to put both parties in the positions that reflected the merits of the case, the parties’ circumstances and circumstances of any other persons who might be affected by his orders. The Chancellor’s judgment was always discretionary, and might call for both the plaintiff and defendant to take remedial steps. The Chancellor’s court was not shy about the need to unravel complex problems. There is a real sense in which the court did whatever was necessary to achieve an appropriate balance between the parties. That flexible attitude still informs modern equitable remedies. Remedies are important in every case extracted in this book. This chapter merely attempts to provide the flavour of equity in action, to demonstrate equity unravelling complex interactions between parties, imposing obligations on the plaintiff as well as on the defendant, and taking into account the interests of third parties. The cases exhibit many of the objectives of equitable remedies, such as compensation, disgorgement, restitution, reformation, coercion and vindication.

The last chapter deals with how the ‘Jewish Councils’ were connected to organised resistance groups and other forms of opposition. It assesses two central themes. First, it examines how the JR, the AJB, the UGIF-Nord and the UGIF-Sud were wittingly and unwittingly used by others as cloaks for clandestine activities. Overall, the very presence of these bodies in all three countries facilitated, to varying degrees, clandestine activities that would never have been possible without their existence. It is argued that the connections between official Jewish bodies and illegal subversive groups in Belgium and France were complex, manifold and fluid. Second, the chapter examines the active engagement of the organisations’ leadership and membership in these activities, and explains why the JR’s leadership’s absence of engagement in such activities is distinct from the situation in Belgium and France. The central aim is to explore the concepts of opposition and resistance in relation to the legal character of these bodies. Existing scholarship has focussed primarily on individuals who crossed the line between legality and illegality, outwardly conforming while also working outside the legal organisations. This chapter takes the analysis one step further and investigates whether and how the ‘Jewish Councils’ were used for clandestine activities in ways that extended beyond this individual level.

Chapter 1 deals with the Municipal Council of Luanda and the politics of Portuguese governors in Angola in the seventeenth and eighteenth centuries, detailing how the Municipal Council of Luanda was involved in illegal wars , treachery and robbery in capturing and enslaving Angolans and shipping them to Brazil on behalf of Portugal. It demonstrates how the Municipal Council of Luanda became the site of political intrigue, jealousy, deceit and mutiny in a political landscape in which the main drive was for economic gain; the enslavement of Angolans was the key part of that package. The methods deployed to capture them – wars, pillage, treachery – formed the basis for Mendonça’s Vatican court case.

In the last chapter, we saw that judicial review is not the same as an appeal against a lower court’s decision. The courts will only intervene in the operation of a public function on the basis of particular criteria. The longest-established and least controversial of these criteria is illegality, which primarily involves the courts checking that lawful authority exists for a decision maker’s actions (fundamental to even the most limited conceptions of the rule of law). The courts, however, have developed further grounds for judicial review beyond this core function. Even if a public body has lawful authority for an action, the courts may still scrutinise its activity on the basis that there was no rational basis for the action (controversially requiring the courts to consider the reasoning behind a decision) or on the basis that adequate procedural safeguards were not operative within the decision-making process (which can, equally controversially, involve the courts introducing procedural requirements upon exercises of a power beyond those imposed by Parliament). In recent decades judicial review has been further extended to protect the interests of claimants who received specific promises from a decision maker, preventing that public body from reneging upon those promises without good reason.

Entering into new and developing markets often involves partnership with economically and politically powerful persons with influence in that country.These joint ventures are not without peril, however.In international investment law, a co-venturer can expose partners to issues of potential illegality, such as whether influence peddling and bribery were among the animating purposes of that partnership.This chapter explores an emerging norm that molds over-arching principles of good faith and fair dealing into a very specific requirement that foreign investors engage in a high level of “due diligence” throughout their relationship with local partners or else be denied recourse to investor-state arbitration even if the host State injures the investment in violation of international law.While it was traditionally necessary to demonstrate that the foreign investor was complicit in any illegality the local partner may have committed, recent cases seem to be moving towards a stricter regime of “due diligence” that puts much of the onus on the foreign investor to ensure that national law is complied with, and that no fraud, corruption, or other illegality exists or persists. This chapter explores the implications of that expansion.

The defences available in negligence comprise the following: (1) contributory negligence, i.e., that C carelessly contributed to his own injury; (2) volenti, i.e., that C fully and freely assumed the risk of injury created by D’s breach; (3) illegality, i.e., that C was engaged in an illegal purpose when harmed by D;1 (4) exclusion clauses, i.e., that D can take advantage of a limitation of liability clause in his agreement/contract with C;2 (5) therapeutic privilege, i.e., that D withheld information about material risks from C, because disclosure might harm C’s health and well-being; and (6) necessity, i.e., that D’s negligence was committed because it was necessary to save life, limb, or property.

In Chapter Eight I continue my theoretical endeavors, this time drawing on a conception of law as a map and offering an analysis of law from the point of view of cartography and its procedures (scale, projection, and symbolization). I concentrate on forms of law, using them as revolving doors through which different forms of power and knowledge circulate. The type of close-up view I am calling for can only be obtained in the context of concrete struggles as they unfold, mobilizing, inventing, confronting, appropriating or rejecting different forms of legality and illegality. The purpose of my analysis is to show that, since the struggles on regulation/emancipation are never fought in general but rather in specific social sites, involving specific issues and social groups, and drawing on specific instrumental and expressive resources, it is of crucial importance and strategic value to understand the limits and the possibilities of the different contexts of struggle, in this particular case, social struggle centered around law, legality and illegality.

In the wake of ramped-up forceful acquisition in CAR’s vast parklands in the 1970s and 1980s, the conservation agenda that had been a minor part of the big-game hunting system also became more forceful. By the late 1980s, a European Union-funded conservation project had been deployed, including a militia of some hundred men whose job it was to patrol the parklands and apprehend anyone they found. Although they were supposed to kill or injure only when necessary for their self-defence, they were able to exercise considerable latitude in their determination. The second half of the book focuses on the transformations wrought by entanglements around forceful conservation. Rather than using this as a case of coercive, even militarised, conservation among other cases of militarised conservation, these chapters use conservation as a way to explore the interpersonal repertoires developed in situations where neither law nor identity is much of a guide. The simultaneous over-presence and powerlessness of law is due in part to the fact that so much of daily life and practice in the region is illegalised. When life is illegal all the way down, camouflage and denunciation are two main modes of action, and each forms the heart of a subsequent chapter.

Chapter 5 looks at the other form of contributory fault: a defence called investment reprisal. Aside from the different causal relation that an instance of investment reprisal has to the relevant loss in comparison to mismanagement, the former involves wrongful conduct on the part of the investor, rather than risky conduct. For this reason, investment reprisal is a form of investor misconduct, which brings it close to another defence: post-establishment illegality. In establishing their doctrinal foundations, special attention is paid to how the circumstances that activate them differ from similar circumstances that relate to different rules, such as the legality requirement for jurisdiction. The bulk of this chapter is dedicated to detailing these defences’ legal content and traversing the difficult questions on jurisdiction and admissibility that they raise. Again, the opportunity is taken to propose a reason-based method for apportioning liability when these defences apply, and the concluding sections distinguish them from other related legal concepts.