Brendan Kelly, associate clinical professor of psychiatry at UCD and author of Dignity, Mental Health and Human Rights: Coercion and the Law wrote an impassioned piece for the Irish Times earlier this week – where he discusses some of the results of his research with UCD into the mental health needs of migrants seeking mental health services in Dublin.
This post was first published as: Russell Sandberg, “Reforming Religious Courts: A Comparison of Two Bills” in Law & Religion UK, 12 July 2015
The recently-published Religion and Legal Pluralism, edited by Russell Sandberg, explores how religious laws are already accommodated under English law, particular issues that arise and their theoretical analyses that explore the extent to which religious legal systems should be recognised. In this post Russell explores the call for legal reform and two possible approaches.
The last few years have seen much concern expressed about the functioning of religious courts – or, to be more precise, we have seen a fear of sharia. The hyperbolic reaction to the erudite lecture on “Religious and Civil Law in England” in February 2008 by the then Archbishop of Canterbury, Dr Rowan Williams, highlighted not only how controversial the subject was but also the extent of our ignorance.
Concerns about religious courts have arisen in many Western States and with increased frequency. The most recent example was in March 2015, when the Home Secretary Theresa May spoke of “examples of sharia law being used to discriminate against women” but then went on to concede that “we know we have a problem, but we do not yet know the full extent of the problem”, calling for an independent investigator to be appointed – which is yet to occur.
Baroness Cox’s Arbitration and Mediation Services (Equality) Bill
Baroness Cox has been one of the most persistent campaigners for reform. She first introduced her Arbitration and Mediation Services (Equality) Bill into the House of Lords in June 2011. And four years on, a slightly amended Bill has been tabled again for a first reading.
Many of the problems with the 2011 Bill are still there in the 2015 version. The Bill still seeks to deal with sex equality and other matters in relation to arbitration and mediation services. This is, of course, laudable; but the Bill if enacted would actually have little effect upon religious courts.
A significant academic literature, including research conducted by Cardiff University into three particular religious tribunals, has underscored that most religious tribunals do not operate under the Arbitration Act 1996 and do not provide mediation services as such. This is particularly true in relation to how religious tribunals deal with questions concerning marriage and divorce. There are some religious tribunals who do operate under the 1996 Act for certain purposes but these are the exceptions to the rule.
Therefore, although there are a number of praiseworthy aspects to Cox’s Bill, like its predecessors the 2015 version mostly continues to miss the point. For instance, it still proposes the creation of a criminal offence of where someone “falsely purports to exercise any of the powers or duties of a court or, in the case of a purported arbitration, to make legally binding rulings without any basis whatsoever under the Arbitration Act 1996 (by which that person purports to have jurisdiction to make such rulings)”.
This proposed offence appears to be too broad. On its face it would appear to criminalise any disciplinary or judgment-making body. None of the religious bodies studied as part of the Cardiff research falsely purported (or indeed purported at all) to have an authority equivalent to that exercised by the courts of the State – they are voluntary associations which exercise no coercive power.
There are some good features to the Cox Bill as it currently stands, most notably the proposed extension of the public sector equality duty to include “informing individuals of the need to obtain an officially recognised marriage in order to have legal protection”.
The Cardiff research found that there may be a problem where religious marriages are not registered and so the parties are not married in the eyes of State law and therefore have little redress under State law if difficulties arise in the relationship. The Sharia Council we studied dealt with a significant number (over half in the 27 cases that we observed) of litigants who do not have a marriage recognised under English law. But, of course, that does not tell us anything about the numbers of recognised or non-recognised marriages that are never dealt with by the Sharia Council. We don’t know how much of a problem that this is and why such marriages are not being registered. The answer, therefore, may lie in education or the reform of marriage law rather than the extension of the public sector equality duty.
Overall, the Cox Bill still fails to understand the mischief that it seeks to remedy. The perceived problem that the Bill seeks to solve is what is often called the “minorities within minorities” issue. This is the need to protect the rights of minorities within religious and cultural groups, seeking to ensure, for example, that women are not discriminated against on grounds of sex by religious tribunals.
This is a genuine concern and attempts to combat this perceived problem are praiseworthy. I say “perceived” problem since we do not have any real empirical data on how common such discrimination is and to what extent it is a problem that affects religious tribunals in particular. Concerns about the protection of vulnerable individuals in institutions that are dominated by those with whom they have little in common in terms of gender and class could apply to courts in general.
The problem with Baroness Cox’s Bill, however, is that the focus is misplaced on arbitration agreements and on courts “falsely” asserting jurisdiction. The focus should actually be upon those who use the religious tribunals. The “minorities within minorities” issue can only be resolved by protecting those who are vulnerable and trying to ensure that if they decide to use a religious tribunal then it is a free choice and that they are not coerced into it simply by being a member of a religious group.
The answer, therefore, lies in education rather than legislation. However, if legislation is needed it would need to take a different form from that proposed in the Cox Bill.
An alternative approach
An alternative draft Bill entitled the Non-Statutory Courts and Tribunals (Consent to Jurisdiction) Bill is included as an appendix to Religion and Legal Pluralism. This Bill, drafted by Frank Cranmer and myself, is based on the proposition that what matters is whether the use of religious tribunals is consensual or not. The Bill follows the sophisticated understanding of consent that has already been developed in the Sexual Offences Act 2003, which provides a statutory definition of consent buttressed by the use of conclusive and rebuttable presumptions. Our Bill stipulates that the activities of a religious tribunal are only lawful where all parties consent but that decisions of a criminal nature and relating to disputes about children would always be unlawful regardless of whether or not the parties consent.
It therefore proposes a statutory offence of exercising or attempting to exercise a judicial or quasi-judicial function in respect of a person without that person’s consent. This is narrower than the Cox Bill, which proposes an offence of falsely claiming jurisdiction; and it focuses not on the assertion of the decision-making body but rather on the consent of the parties. We reserve the broader offence of falsely claiming a jurisdiction to a situation where someone has been charged with a criminal offence or where an order has been made concerning a dispute about children.
Our Draft Bill also tries to overcome the problems associated with the Cox Bill to cover tribunals that do not operate under the Arbitration Act 1996. Indeed, we exclude those that operate under the Act from the Bill’s remit on the basis that the Arbitration Act already contains robust protection. We hope that the draft will provoke further discussion of a complex issue. The recent comments by the Home Secretary suggest that there is still much to learn and it is hoped that Religion and Legal Pluralism will provide a further step in that direction.
Dr Russell Sandberg is a Senior Lecturer in Law at Cardiff University where he researches at the Centre for Law and Religion. He is the author of Law and Religion (Cambridge UP 2011) and Religion, Law and Society (Cambridge UP 2014), and co-author of Religion and Law in the United Kingdom (2nd edn, Kluwer Law International 2014).
Posted by Luana Life, Marketing Coordinator
Lyall and Larsen, Space Law: A Treatise, 2009
On 4 October 1957 – that’s nearly sixty years ago – the world was startled by Sputnik I. Since then space has transformed modern life. We watch satellite tv. Email, data and other Internet communications go through orbiting relay points. Global positioning systems let us find our way on unfamiliar routes or to roam the countryside in relative safety. We can even track and find wandering Alzheimer sufferers using that technology and terrestrial telephony. Aircraft, ships and motor vehicles can now know exactly where they are. Weather is monitored and increasingly accurate predictions made. Ships and planes avoid storms. Potential disasters, volcanic and otherwise, are predictable, and we react to dire events using satellite technology to inform our actions. We monitor land use, farming, vegetation coverage, and aridity. Guano deposits allow the detection from space of otherwise inaccessible penguin colonies. We track fisheries, ocean health and climatic events such as El Niño and its cognate La Niña.
Such benefits apart, space has also allowed major developments in our understanding of the universe. We have been to the Moon and will go again. Our robotic rovers explore Mars and report their findings. The Hubble Space Telescope and its successors have shown something of the beauty and complexity of our Universe and given our astronomers much to work on. While this blog was being written the New Horizons probe was transmitting fascinating views of the dwarf planet Pluto and its moon Charon. Having scrutinised some of the outer planets the Voyager probes and Pioneers 10 and 11 have left the solar system and are now in interstellar space. Their radio-isotopic batteries may keep them in touch with Earth for a little while yet.
Space Law undergirds all these developments. One fundamental is that all satellite use requires good radio communication between space and ground stations. The mechanisms of the International Telecommunication Union, based in Geneva since 1865, provide these, allocating appropriate radio frequencies for space purposes from 1959. The other fundamental is that there should be international agreement as to the ground-rules for the use of space. This was achieved initially through the United Nations, and implemented in national legislation. In 1963 the UN adopted a declaration of general principles to govern the activities of states in space and between 1967 and 1979 adopted five international treaties to flesh out these principles. Importantly the 1967 Outer Space Treaty provided that there is no national sovereignty in space. Space is free for all to use, but not to the exclusion of others. Treaties cover such matters as state duties to license and supervise their own activities in space and those of their nationals, state responsibility for these activities, the rescue and return of astronauts, the registration of satellites, the consequences of accidents, and (less successfully) how the Moon and other natural space objects are explored and (perhaps later) exploited. Later UN Resolutions and recommendations have dealt with matters including how states permit remote sensing, use nuclear power sources on spacecraft, register space objects, disseminate the benefits of space and mitigate space debris. Within the UN the Office for Outer Space Affairs has been helpful in developing good practice and the Committee on the Peaceful Uses of Outer Space (COPUOS) continues to discuss and debate.
There is much still to be done. How can financial loans be secured over satellites in orbit? Can asteroids be mined and what rules should apply? Should the crewing of long-range explorations be organised on military or civilian lines? Who should cope with an asteroid on collision course with Earth, and how? What if extraterrestrials are detected?
We were there at the beginning. We met in 1963 as part of the intake that year to the Institute of Air and Space Law at McGill University in Montreal. Thereafter FL went into academe at the University of Aberdeen, Scotland, and PBL into government service in the US Department of Transportation while also teaching as an Adjunct Professor in Georgetown University, Washington, DC, where his duties included acting as lawyer for the team that prepared the US global positioning system for civilian use. He has also been involved in negotiations about security interests in space objects. And so our interest in space continued. We both published articles, and FL a book.
By the mid-2000s Space Law had become a wide field, difficult for a single individual adequately to encompass, so, pooling our knowledge, we came together to produce our Treatise on Space Law. Our aim was – and is – readably to inform, sharing the scope and potential of this vibrant emergent field of law to benefit both practitioners and students.
Our understanding is that our aim has been met, thanks to Ashgate. A second edition is under way.
Francis Lyall and Paul B. Larsen
Posted by Luana Life, Marketing Coordinator
Roger Cotterrell, Professor of Legal Theory at Queen Mary, University of London, UK, provides today’s guest blog. He is the author of Law, Culture and Society: Legal Ideas in the Mirror of Social Theory — an Editor’s Choice title in our Law list. The following post includes background information about the book and his research motivations, thoughts, and experiences that helped shape the volume’s success and contribution to the field.
Law, Culture and Society originated in a series of essays written over an eight year period. But it was intended as far more than just a collection of linked papers. I saw all of the studies that contributed to it as part of a single, tightly integrated project, even if one with several branches. I wanted to show through this book what I had come to see as a necessary new perspective on the study of law in society. Since I had long been interested in legal theory and committed to studying law from a sociological perspective, the book was a kind of first summation of what I had gradually worked out as the most productive way to apply this sociological outlook in a theoretically consistent way in interpreting legal ideas. So, it was subtitled ‘legal ideas in the mirror of social theory’. As in much of my work, a guiding motivation was to show the relevance of sociological insights for juristic, doctrinal studies of law – the kinds of studies with which lawyers and law students are most familiar.
Looking back now, a decade after the book’s original publication, I can see two factors as especially important in determining the form that Law, Culture and Society took. The first was that in the years leading up to its publication I had become increasingly interested in comparative legal studies – an area of legal scholarship that throughout its development has been more open than most to making alliances with the social sciences. The strong links I had developed with comparative lawyers encouraged me to consider more carefully how sociological perspectives could aid them, and to ask how the whole enterprise of comparative law could acquire more solid theoretical foundations by drawing on ideas from social theory. So, the book was written partly to address students of comparative law.
It seemed obvious that comparative legal studies would become more important in a globalising world. Pressures to harmonise law across national boundaries were becoming more intense. But at the same time ‘local’ cultures – often reflecting particular traditions, values and allegiances – clearly sought to resist some of these harmonising pressures and called on law to express their distinctiveness. There seemed to be a dual movement focused on law: it must seek the efficiency of similarity produced through harmonisation but it must also appreciate cultural difference. As a consequence, ‘culture’ would have to become a very important focus of attention for legal scholars.
Sociology and anthropology had already developed many ideas about the nature of culture that deserved attention. However, when I came to examine carefully the ideas about ‘legal culture’ that were current in socio-legal studies I felt they lacked rigour. So an important part of my project, reflected in Law, Culture and Society, was to find a way of thinking about culture that could be conceptually defensible, consistent and systematic, and practically relevant for legal analysis as well as for social scientific inquiries about law.
A second main factor also shaped the book’s form. I had come to feel that the old agenda of socio-legal studies – to study the interaction between ‘law’ and ‘society’ – was becoming exhausted. Socio-legal scholars had tended to treat ‘society’ as referring to national societies and ‘law’ as the law of nation states. But social research showed that social and economic relationships were increasingly transnational and international, and law in practice was less and less confined to national law. Law, Culture and Society introduces and develops the idea of communal networks that can cross nation state boundaries, and it suggests that different kinds of communal relationship typically pose different legal problems and present different regulatory needs. Equally, the diversity of communal networks within national societies is a matter of great juristic relevance. So, the book tries to displace the old fixation with national societies as law’s sole concern in favour of a much more open view of communal networks – national, intra-national and transnational.
I had not been thinking of culture when I first wrote about communal networks. However, I came to think that culture could be best understood in terms of them. It could be seen as the bonds that allow these various networks to exist. So, the book’s approach was intended to suggest new agendas for social study of law. I used it to reconsider the possibilities for ‘transplanting’ law from one cultural environment to another, as well as the nature of authority in comparative law, and the multifaceted character of culture as a concern for law. More broadly, I claimed that the law-and-community approach could help to clarify one of the most basic foci of legal analysis – the idea of responsibility.
Since the book appeared I have further developed its approach, which has also been used by other scholars working in diverse fields. Today we can at least see clearly that social studies of law are becoming ever more important and that their character is changing as law becomes more transnational and international, and as networks of socio-economic relations become ever more varied, diverse and intricate within and across national boundaries. Socio-legal researchers and socially-aware lawyers surely have plenty of work to do and I hope that Law, Culture and Society can still prove helpful.
June 22nd 2015
Examination Copies of this title are available on a 60 day trial basis for lecturers considering course adoption. To request a copy of a book, fill out the online inspection/examination form.
Posted by Sarah Stilwell, Senior Marketing Executive
Sheila McLean has been associated with Ashgate since 1980 and we were absolutely delighted to have the opportunity to publish this book in her honour. The book itself is a fitting and eloquent tribute to Sheila’s remarkable career and role in the development of medico-legal studies as an academic subject. Alison Kirk, publisher of Ashgate’s law list, who was present at the dinner organised by Sheila’s colleagues in her honour, concluded her appreciation with the words: ‘It was an absolute pleasure working with Sheila and we will miss her. Ashgate would like to thank her for all her hard work both as an author and series editor. We wish her all the very best for a well-deserved, long and happy retirement’.
Published this month, Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean is edited by Pamela Ferguson, University of Dundee, UK and Graeme Laurie, University of Edinburgh, UK
‘Inspiring a Medico-Legal Revolution epitomizes more than just its contents. It reflects the career and research of Sheila McLean herself. All parts of the book are provocative and insightful, addressing a wide range of controversial topics. It is rare that so many recognized legal scholars together contribute to a book that spans legal issues at the beginning of life, in medical care, professional liability, as well as regulatory and end of life issues. But then, how else to honour such an esteemed colleague? Readers will be all the more enriched.’ Bartha Maria Knoppers, McGill University, Canada
‘This collection of essays is a fitting endorsement of the contributions to the field that Professor Sheila McLean has made. This is an inspiring collection which will provide a lasting tribute to her work.’ Jane Kaye, University of Oxford, UK
‘This is a true celebration of Sheila McLean’s free and indomitable spirit. The impressive range and richness of the essays show her enduring influence as an academic pioneer, a warm mentor and friend, a dedicated internationalist, and a tireless gadfly in the bodies of institutionalised medicine and law.’ Alastair V. Campbell, National University of Singapore
Click here for more information on books published by Ashgate in the field of medical law
Click here for more information on Sheila McLean’s academic and professional appointments
Posted by Helen Moore, Marketing Manager
The BIALL Life Membership Award 2015 has been awarded to Loyita Worley, Director of EMEA Library Operations, Reed Smith.
The British and Irish Association of Law Librarian’s (BIALL) awarded the BIALL Life Membership Award 2015 to Loyita Worley at the BIALL Annual Dinner, which took place in the Hilton Brighton Metropole on 12 June 2015.
This is an award that is bestowed on current BIALL members who have had active and distinguished careers within Law Librarianship, and who have been substantially involved with BIALL. Loyita has been active in BIALL for 30 years and has stayed with the same law firm, albeit in different guises, for almost as long. She has held the roles of Membership Secretary, Council Member and in 1999 Chair of BIALL (the former term for “President”), the first member from a law firm to be elected to this office.
Loyita edited the first edition of the BIALL Handbook of Legal Information Management published in 2006 and stepped in again more recently to take over as editor of the 2nd edition as well as contributing one of the chapters.
It was with great pleasure that BIALL president Marianne Barber presented Loyita with the Life Membership Award.
Posted by Sarah Stilwell, Senior Marketing Executive
Ashgate is proud to be the publisher of award-winning books by authors Richard Weisman and Nicholas Lord, both of whom received news of their awards this month.
Richard Weisman has won the 2015 Canadian Law and Society Association Book prize for his book Showing Remorse: Law and the Social Control of Emotion.
‘In this carefully argued and researched volume, Richard Weisman provides an original examination of the concept of remorse. The work constitutes a valuable addition to the literature on this complex issue and will be of great interest to socio-legal scholars and legal practitioners alike.’ Julian V. Roberts, University of Oxford, UK
‘While contemporary criminal justice is officially secular and fact-driven, offenders are nevertheless expected to show remorse, and lack of visible remorse can have a marked negative impact in parole and probation contexts as well as in sentencing. In this innovative work Richard Weisman explores the complex emotional, psychological and legal issues raised by the criminal justice’s system unwritten expectations about offending and remorse. The book will be of interest to criminologists, socio-legal scholars, forensic psychologists, defence lawyers, and judges, but it is also accessible to the general public.’ Mariana Valverde, University of Toronto, Canada
This is the second award for Showing Remorse, which also won Honorable Mention for the 2014 Distinguished Book Award of the Sociology of Law Section of the American Sociological Association.
Richard Weisman is Professor Emeritus, Department of Social Science, Law and Society Program, Faculty of Liberal Arts and Professional Studies, and Department of Sociology, Glendon College, York University, in Toronto, Canada.
Author Nicholas Lord has also been announced as an award winner: he is joint winner of the Criminology Book Prize 2015, awarded by the British Society of Criminology, for his book Regulating Corporate Bribery in International Business: Anti-corruption in the UK and Germany.
‘This excellent book is that rare thing – a readable and detailed examination of the dilemmas that contemporary societies – especially the UK and Germany – face in dealing with corporations operating transnationally in international commerce that use bribery to win or maintain contracts in overseas jurisdictions, often poor countries that most NGO campaigns focus on. Nick Lord persuasively argues that historical traditions have left a contemporary legacy that complicates international co-operation in prosecuting transnational and complexly organised corporate crimes. With well researched case studies, he shows that these historical traditions help us understand the limitations of criminal sanctioning by sovereign actors as an enforcement mechanism for controlling illicit corporate behaviour. He thoughtfully broadens out these case studies to discuss the overlap of regulatory and criminal justice in a context ignored in most recent work on preventive justice.’ Michael Levi, Cardiff University, UK
In addition, Nicholas Lord is also the winner of the 2014 Young Career Award of the White-Collar Crime Research Consortium / National White-Collar Crime Center, USA.
Regulating Corporate Bribery in International Business is published as part of the Law, Crime and Culture series
Nicholas Lord is a Lecturer in Criminology in the School of Law at the University of Manchester. He has research expertise in the area of white-collar and corporate crimes of a financial and economic nature such as fraud, corruption and bribery along with interests in regulation theory and corporate governance. He completed his PhD in criminology and an MSc in Social Science Research Methods in the School of Social Sciences at Cardiff University and his BA in Criminology and German at Lancaster University.