Examining the history and institutions of the legal systems in Afghanistan, we contend that there is an under-examined set of plural legal systems – those where different legal traditions remain in continual contention. Unlike mixed legal systems, these plural legal systems are not composed of mixed, blended, or accommodated models, but of conflicting legal influences that fail to create a well-functioning legal order, contributing to social and political conflicts. In this chapter, we first discuss the different characteristics of divided legal systems. Next, we explain why Afghanistan has failed to overcome the problem of a divided legal system.

In 1969, David A. Morse received the Nobel Peace Prize on behalf of the International Labour Organization (ILO). In his Nobel Lecture, the then Director-General (DG) explained how the organization contributes to ‘an infrastructure of peace’ by providing Member States with ‘a meeting ground’ for cooperation and dialogue. This meeting ground is characterized by tripartism and universalism, two qualities that make the ILO stand out. Tripartism, in which governments and workers’ and employers’ representatives discuss and decide on all ILO action, ‘was both the most daring and the most valuable innovation of the Peace Conference’. By setting up the ILO in tripartite fashion, the social dialogue between trade unions, employers’ organizations, and governments was presented as a viable approach to resolving social conflict. As Morse suggested, if tripartism ‘could be accepted and applied in Geneva, why not at home?’.

Indirect rule was integral to the colonial governance of religion. The state’s intimacy with Muslim elites gave rise to accusations of ‘Muslim sub-imperialism” by Protestant missionaries and other critics who argued that rather than hinging on the separation of the state from all religions, colonial governance entailed the “unblushing bolstering up of Islam.” This chapter argues that indirect rule did not amount to an elevation or even preservation of the caliphal governance ideals. Instead, that mode of governance entailed the transformation of those institutions. Indirect rule was, therefore, not only governance through ‘Islamic institutions,’ but more importantly, it was the governance of those institutions. That governance process culminated in the making of a distinct British colonial Islamic law. That colonial law emerged from the alteration of the precolonial constitutional balance of powers between jurists’ expositions of the Shari’a (fiqh), on the one hand, and political authorities’ jurisdiction over a law (“siyasa”), on the other. This chapter traces that transformation as central to the career of imperial secular governmentality in the colony.

This chapter chronicles the late colonial state’s elimination of Islamic law from public law through a Penal Code rooted in imperial law. The transformation of Islamic law since the inception of colonial rule belied the early colonial state’s claim to retaining Islamic criminal law. Nevertheless, the formal retention of the Shari’a in public law through Islamic criminal law had been a distinct feature of Northern Nigeria, underlining the formal status of Muslim elites and Islamic law. In response to the concerted criticism of missionaries, and senior colonial officials, the 1958 reforms abrogated the ceremonial status of Islamic law. Even as the 1958 Penal Code removed all illusions of the retention of Islamic law, administrators and Muslim elites legitimated the reform exercise by invoking Islamic legal authority, particularly the practice of Muslim societies. That discourse capaciously expanded the state’s power to regulate the content of Islamic law by re-casting the state’s Sharia-constrained siyasa jurisdiction as an expansive siyasa whose constitutional boundaries are drawn by the modern state. By so doing, the 1958 reforms sealed the state’s prerogative to govern religion.

Although law was placed at the centre of the development process in the Law and Development movement launched in the 1960s, there was limited understanding at the time of the factors necessary for borrowed laws to succeed in the adopting country. This chapter investigates the theoretical links between adoption and implementation of borrowed competition laws and integrates strands from comparative law, literature on policy diffusion and transfer, and new institutional economics to develop a framework for examining competition law transplants as they proceed along the deliberation–adoption–implementation continuum. This chapter argues that a borrowed law may be considered successful if it is understood, utilised, and applied in the borrowing country and continues to grow in and become a part of its pre-existing legal system. It further argues that this is only possible if the borrowed law is compatible with the context of the adopting country and enjoys a degree of legitimacy in it.

We are now in the Anthropocene, a time in the earth’s four-billion-year history when human activities are affecting the planet to such an extent that humans have become a ‘significant geological force’. The risks facing humanity also challenge the rule of law. Ideally, law operates to help keep a society stable, peaceful and ordered. Since law is ‘the principal means of implementing public policy’, law must evolve to play its part. Lawyers have a key role to play in assisting that evolution, and the ethics that govern lawyers’ work will play a large part in determining its success. This chapter focusses on the work of lawyers in addressing climate change and environmental damage. Such work raises important issues about lawyers’ role generally and the values and ethics underpinning that role. In this chapter we consider how the different ethical approaches (adversarial advocacy, responsible lawyering, moral activism and ethic of care) are informing lawyers’ actions on behalf of the planet. Of course, many lawyers will draw from several ethical approaches in their work. Likewise, all four approaches can support efforts at law reform, which we discuss later in the chapter.

This chapter concludes the book by charting a path forward for law reform. Suggestions for reform of the significantly more burdensome legal framework in Australia, as opposed to England and Wales, are presented. Throughout this book is a plea for the law to support, rather than impede, trans young people’s gender expression and bodily autonomy.

With the case for withdrawal remedies made and critical comparative analysis of several jurisdictional variants conducted earlier in the book, Chapter VIII integrates insights from the theoretical and comparative analyses into a jurisdiction-neutral model withdrawal solution. This ‘Model Remedy’ gives effect to private ordering arrangements and offers judicially administered solutions where contract is absent or otherwise defective. Chapter VIII also explains the Model Remedy’s key features: a trichotomous classification of withdrawal grounds (fault, non-fault, and at will), and a combination of mandatory, sticky default, and default rules and standards differentiated by the grounds involved. Drawing on and improving upon existing legal regimes, the Model Remedy provides practical guidance on the design and implementation of calibrated withdrawal solutions responsive to a broad range of scenarios. It will be useful for legislators and judges seeking to address intracorporate conflicts in close corporations, and for legal practitioners drafting close corporation constitutions and shareholder agreements.

Chapter V turns to the UK, whose withdrawal remedy has served as the model for similar remedies across the Anglo-Commonwealth. While the ‘unfair prejudice’ remedy was initially a great success that spawned a rapidly developing jurisprudence, the perception of an explosion in shareholder litigation in the courts and mushrooming costs against the backdrop of ongoing civil justice system reforms caused serious backlash in the 1990s. On the judicial front, Lord Hoffmann’s seminal speech in O’Neill v Phillips effectively became the last word on unfair prejudice. Contemporaneously, law reform attempts aimed at addressing the perceived problems of unfair prejudice ultimately led nowhere. The meteoric rise and gradual fall of the unfair prejudice remedy in the UK is a cautionary tale of the power of judges to obstruct, of how one decisive voice prevailed over many divided against themselves, and of the limits of legislative reform in close corporation law.

Chapter VI turns to the US, where various states developed diverse solutions to shareholder conflict for over one hundred close corporation legal forms. While many US states recognize withdrawal as a solution to majority-minority shareholder conflict in US close corporations, several states have resisted or even renounced withdrawal. The attitude towards LLCs, which are rapidly growing in popularity across the US, is more ambivalent, as state legislatures and judges have been slow to respond to problems of intracorporate conflict and oppression. While the contractarian-led scholarly debate on whether corporate law should be mandatory or default is instructive, the reality that withdrawal is often missing from state LLC statutes is not attributable to state legislatures taking reasoned policy positions. Rather, withdrawal’s absence in LLCs is caused by incentives created by federal taxation policy. There are signs that history moves in circles as withdrawal remedies seem to be (re)emerging in LLCs.

Chapter VII tackles the intriguing puzzle of Japan. Until relatively recently, shareholders and members of Japan’s close corporations had no access to withdrawal under the law, as neither of Japan’s then-dominant close corporation forms offered this. By revealing how shareholders in Japan responded to the absence of withdrawal, I show how Japan’s experience serves as a historical counterfactual that powerfully demonstrates the demand for and importance of withdrawal remedies in practice. More recently, withdrawal remedies at law became available in Japan, for the first time and for a true close corporation form – by semi-accident. The Godo Kaisha (GK), the new and American-inspired close corporation form, offers withdrawal remedies unprecedented even by comparative law standards, but numerous challenges lie ahead. While the GK’s withdrawal regime has yet to establish itself as an integral part of the corporate law landscape, Japan demonstrates the potential pitfalls involved in introducing close corporation withdrawal by legislation.

Chapter IV examines the withdrawal remedy in Germany, arguably the earliest major jurisdiction to introduce a close corporation legal form – the GmbH. The history of German GmbH law, especially the law of member withdrawal, belies Germany’s image and reputation as a ‘civilian’ jurisdiction. Despite the GmbH’s beginnings as a revolutionary invention of the German legislator, GmbH law is since little touched by major legislative reform, and heavily shaped then and now through German judicial precedent and academic literature. Member withdrawal for ‘good cause’ (Austritt aus wichtigem Grund), developed in the absence of express statutory provision, is an example of this par excellence. The flexible core concept of ‘wichtiger Grund’, which supports withdrawal in a wide variety of circumstances, powerfully demonstrates withdrawal’s value in the close corporation context. Germany’s experience illuminates the path for jurists of any jurisdiction interested in developing a functioning withdrawal regime of its own – even if politician-legislators accomplish and contribute nothing.

Chapter IX summarizes this Book’s key findings and explores applications and extensions of the corporate law concepts and comparative law methodology developed in this Book. This Book contributes to legal scholarship in three ways. First, it establishes a coherent set of corporate law concepts and terminology that clarifies and expands our understanding of shareholder conflict and withdrawal across diverse jurisdictions. Second, it develops and applies a novel comparative law method (named the ‘tripartite method’). Third, I identify and analyse the phenomenon, which I call ‘spontaneous functional convergence’, in withdrawal law. This subtype of convergence occurs where jurisdictions appear to have – largely independently of other jurisdictions – developed legal regimes that are functionally similar but formally different using mostly, if not exclusively, domestic legal sources and inspirations. The spontaneous convergence observed in the withdrawal regimes of the target jurisdictions point to withdrawal as an evolutionary milestone for close corporation law.

On May 16 2002, the Belgian parliament approved the original law permitting euthanasia. The law was voted in after three years of debate in parliament and within the Federal Advisory Committee on Bioethics. The focus of this chapter is an issue which has been of particular interest in recent public debates internationally: the extension of the law in 2014 to permit minors with ‘capacity of discernment’ to have access to euthanasia. Although the law now theoretically applies to Belgians of all ages, in reality, euthanasia for minors will be limited to older adolescents. This chapter considers how the issue of children’s access to euthanasia came to be considered and the process of reform including the positions and arguments of different entities. Also considered is parliament’s rationale for this change in the law. Of particular significance in the reform process was the view that the age barrier for euthanasia was perceived as arbitrary. The prime qualifier for a valid, well-considered and competent request should not be chronological age but mental age and maturity.

A consensus has recently developed within the UK Parliamentary debate over the legalisation of assisted dying that the consent of a High Court judge should be required as part of a future regulatory regime. This chapter questions the basis of this consensus, arguing that it is neither evidence-based nor required by the decision of the UK Supreme Court in Nicklinson. The chapter begins by briefly sketching the approach of permissive regulatory regimes to the evaluation of assisted dying cases which demonstrates the dearth of direct experience of judicial approval of such cases. Recent calls for prospective judicial approval in two jurisdictions then contemplating legalisation are considered ‒ Canada (which did legalise) and England and Wales (which did not), demonstrating that these calls are tactical and lack substantive argument. The chapter then examines data from permissive regimes to describe persons likely to seek assistance in dying and evaluates the extent to which a prospective judicial approval requirement would meet likely legislative goals, before recommending an alternative approach and drawing broader lessons from this experience for legislative change on assisted dying.

In 1993, Sue Rodriguez was unsuccessful in her efforts to persuade the Supreme Court of Canada that the Canadian Criminal Code prohibitions on voluntary euthanasia and assisted suicide violated her rights under the Canadian Charter of Rights and Freedoms.  Some twenty years later, in February 2015, the Supreme Court of Canada unanimously struck down the very same prohibitions in Carter v. Canada (Attorney General).  The next year, the Canadian Parliament passed Bill C-14 – An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).  Medical assistance in dying is now legal in Canada and it has become an illuminating case study for other jurisdictions contemplating assisted dying.  This chapter describes the journey from Rodriguez to Carter to Bill C-14 and reflects on the lessons to be learned from the two interconnected yet distinct pathways to law reform taken in Canada (a court challenge and federal legislation).  While there are obviously critical differences between jurisdictions such that the Canadian path cannot simply be replicated, this chapter draws out transferable lessons about law reform in this area.

Until Oregon voters approved an aid-in-dying referendum in 1994, no jurisdiction in the United States had given legal approval to aid in dying. Moreover, fourteen years passed before a second state, Washington, legalised aid in dying. Since then, recognition has accelerated. Now, aid in dying is permitted in nine states and the District of Columbia, with nearly one in four Americans living in a jurisdiction that permits the practice. While a right to aid in dying has taken different paths—voter approval, legislative action, or judicial decision—all legalising US jurisdictions recognise the right in the same basic way: patients must be adults with decision-making capacity, must be terminally ill, and must self-administer the lethal dose of medication. This chapter discusses why the different jurisdictions have converged on the same legal framework for a right to aid in dying. In particular, there are key reasons for limiting a right to aid in dying to patients who are terminally ill (i.e., life-expectancy of six months or less). The chapter also discusses the implications of the common legal framework for future evolution of the right to aid in dying in the United States.