Are pregnant women entitled to the same rights of self-determination and bodily integrity as other adults? This is the fundamental question underlying recent high-profile legal interventions in situations when pregnant women and healthcare staff do not agree on management options or appropriate behaviour. Courts on both sides of the Atlantic have sometimes answered that they are not, and the law has at times been manipulated to enforce compliance with medical recommendations. This is the first book of its kind to offer a comprehensive assessment of healthcare law as applied to the unique situation of pregnancy. Drawing on case material from both the UK and the USA, it describes the trend towards 'policing pregnancy' and explores the emergence of the concept of 'maternal-foetal conflict' - and why, in the author's view, this would be more appropriately labelled 'obstetric conflict'. Suggestions are made for alternative approaches that better safeguard the overall well-being of pregnant women and their future children.

This book looks at responsible government under the Australian Constitution. It undertakes a detailed examination of the history leading to the incorporation of responsible government into the Constitution, examining the political history and constitutional ideas which informed the framers’ views. It draws on this history to develop a theory of responsible government and explore its implications for the interpretation of the Constitution and the structure of modern government in Australia. The book fills a major gap in our knowledge of the intellectual background of the Australian Constitution by explaining the constitutional ideas that have shaped the text and structure of the Australian Constitution. It contributes to worldwide debates about constitutional interpretation by showing how rigorous use of history can lead to novel interpretations of constitutions without being tied to the 'dead hands of the founders'.

A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University. This book discusses the impact of EU law on selected national legal systems. The authors analyse how the civil procedure system of their country has reacted to increasing Europeanisation and influence of EU law. They identify significant changes and disseminate the reasons for particular developments and the further implications of EU law on the civil procedure.Europe is in a period of increasing Europeanisation of civil procedure. Procedural elements of EU law are based on decentralised enforcement, leaving enforcement and procedural issues to the Member States. Consequently, there is vast amount of EU case law that is relevant for national procedural law. The supremacy of EU law and, inter alia, the requirements of effectiveness and equivalence may be relevant for several topics of national civil procedural law, for example ex officio application of EU law, enforcement, insolvency proceedings, evidence, etc. Both EU legislation and doctrinal changes in EU case law touch upon various topics of the procedural law of the Member States. In a concluding chapter, a more comprehensive comparison between the countries represented in the book is made. Which doctrines, which pieces of legislation or features in legislation pose problems for national civil procedure? Are some legal systems or topics more prone to integrate European rules, and are others more resistant to changes? This book displays the Europeanisation of national civil procedure law and helps to understand this development from the perspective of Member States.

This book explores the recent trend of enhancing the role of the people in constitutional change. It traces the reasons underlying this tendency, the new ways in which it takes form, the possibilities of success and failure of such ventures as well as the risks and benefits it carries. To do so, it examines the theoretical aspects of public participation in constitutional decision-making, offers an analysis of the benefits gained and the problems encountered in countries with long-standing experience in the practice of constitutional referendums, discusses the recent innovative constitution-making processes employed in Iceland and Ireland in the post financial crisis context and probes the use of public participation in the EU context. New modes of deliberation are juxtaposed to traditional direct-democratic processes, while the reasons behind this re-emergence of public involvement narratives are discussed from the aspect of comparative constitutional design. The synthetic chapter offers an overview of the emerging normative and comparative issues and provides a holistic approach of the role of the people in constitutional change in an attempt to answer when, where and how this role may be successfully enhanced. The work consists of material specifically written for this volume, and authored by prominent constitutional scholars and experts in public participation and deliberative processes.

This book provides a contextual and authoritative overview of the principles, doctrines and institutions that underpin the Czech constitution. The book explores key topics including; the Czech pluralist constitution, constitutional principles, the interaction between the legislature, executive and the judiciary, the role of local governance and application of fundamental rights in practice. It also covers the morphing of Czech constitutionalism as a result of personal politics, conventions, informal institutions and constitutional narratives and sentiments. This informative study allows students and scholars of law and politics to develop an informed view of how Czech democracy actually works and what its main challenges are.

Controversies in Innocence Cases in America brings together leading experts on the investigation, litigation, and scholarly analysis of innocence cases in America, from legal, political and ethical perspectives. The contributors, many of whom work on these cases daily, investigate contemporary issues presented by innocence cases and the exoneration movement as a whole. These issues include the challenges faced by the movement, causes of wrongful convictions, problems associated with investigating, proving, and defining 'innocence', and theories of reform. Each issue is placed within a multi-disciplinary perspective to provide cogent observations and recommendations for the effective handling of these cases, and for what changes should be adopted in order to improve the American criminal justice system when it is faced with its most harrowing sight: an innocent defendant.

Criminal justice procedure is the bedrock of human rights. Surprisingly, however, in an era of unprecedented change in criminal justice around the world, it is often dismissed as technical and unimportant. This failure to take procedure seriously has a terrible cost, allowing reform to be driven by purely pragmatic considerations, cost-cutting or foreign influence. Current US political domination, for example, has produced a historic and global shift towards more adversarial procedure, which is widely misunderstood and inconsistently implemented. This book addresses such issues by bringing together a huge range of historical and contemporary research on criminal justice in Europe, Asia, Africa, Australasia and the Americas. It proposes a theory of procedure derived from the three great international trial modes of 'inquisitorial justice', 'adversarial justice' and 'popular justice'. This approach opens up the possibility of assessing criminal justice from a more objective standpoint, as well as providing a sourcebook for comparative study and practical reform around the world.

This study explores the reasons behind the different responses of the legal systems of Europe, Japan and the USA in coping with BSE, one of the major food safety crises in recent years. Making reference to the most recent advances on risk perception that cognitive and social sciences, such as legal anthropology and sociology of law, have experimented with, Risk Perception, Culture, and Legal Change examines the role that culture plays in moulding the process of legal change. Attention is focused on the regulative frameworks implemented to guarantee the safety of the food chain against the BSE menace and on the liability responses sketched to compensate the victims of mad cow disease, showing how both these elements have been influenced by the cultural context within which they are situated.

This book investigates the role of Islam and religious freedom in the constitutional transitions of six North African and Middle Eastern countries, namely Morocco, Algeria, Tunisia, Egypt, Turkey, and Palestine. In particular, the book, with an interdisciplinary approach, investigates the role of Islam as a political, institutional and societal force. Issues covered include: the role played by Islam as a constitutional reference - a "static force" able to strengthen and legitimize the entire constitutional order; Islam as a political reference used by some political parties in their struggle to acquire political power; and Islam as a specific religion that, like other religions in the area, embodies diverse perspectives on the nature and role of religious freedom in society. The volume provides insight about the political dimension of Islam, as used by political forces, as well as the religious dimension of Islam. This provides a new and wider perspective able to take into account the increasing social pluralism of the South-Mediterranean region. By analyzing three different topics - Islam and constitutionalism, religious political parties, and religious freedom - the book offers a dynamic picture of the role played by Islam and religious freedom in the process of state-building in a globalized age in which human rights and pluralism are crucial dimensions.

Paul Maharg presents a critical inquiry into the identity and possibilities of legal education, and an exploration of transformational alternatives to our current theories and practices of teaching and learning the law. His work takes the view that bodies of interdisciplinary theory and knowledge of the history of legal education are important to all stages of legal education. He also argues that new learning designs - such as transactional learning - need to be developed to help students, educators and lawyers deal with the transitions and challenges facing them now and in the foreseeable future. Throughout, discussions of theory are spliced with case studies of academic and professional legal learning, particularly in the field of technology-enhanced learning. The content of the book will be updated in a community of practice wiki at http://www.transforming.org.uk, which will also allow readers to comment and expand on the book's final chapter.

This book investigates the dynamic intertwinement of law and morality, with a focus on new and developing fields of law. Taking as its starting point the debates and mutual misunderstandings between proponents of different philosophical traditions, it argues that this theoretical pluralism is better explained once law is accepted as an essentially ambiguous concept. Continuing on, the book develops a robust theory of law that increases our grasp on global legal pluralism and the dynamics of law. This theory of legal interactionism, inspired by the work of Lon Fuller and Philip Selznick, also helps us to understand apparent anomalies of modern law, such as international law, the law of the European Convention on Human Rights and horizontal interactive legislation. In an ecumenical approach, legal interactionism does justice to the valuable core of truth in natural law and legal positivism. Shedding new light on familiar debates between authors such as Fuller, Hart and Dworkin, this book is of value to academics and students interested in legal theory, jurisprudence, legal sociology and moral philosophy.

While the visibility of disability studies has increased in recent years, few have thoroughly examined the marginalization of people with disabilities through the lens of political economy. This was the great contribution of Marta Russell (1951-2013), an activist and prominent scholar in the United States and best known for her analyses of the issues faced by people with disabilities. This book examines the legacy of Marta Russell, bringing together distinguished scholars and activists such as Anne Finger, Nirmala Erevelles and Mark Weber, to explicate current issues relevant to the empowerment of people with disabilities. Drawing from various fields including Law, Political Economy, Education and History, the book takes a truly interdisciplinary approach, offering a body of work that develops a dextrous understanding of the marginalization of people with disabilities. The book will be of great use and interest to specialists and students in the fields of Political Economy, Law and Society, Labour Studies, Disability Studies, Women's Studies, and Political Science.

Negotiating religious diversity, as well as negotiating different forms and degrees of commitment to religious belief and identity, constitutes a major challenge for all societies. Recent developments such as the 'de-secularisation' of the world, the transformation and globalisation of religion and the attacks of September 11 have made religious claims and religious actors much more visible in the public sphere. This volume provides multiple perspectives on the processes through which religious communities create or defend their place in a given society, both in history and in our world today. Offering a critical, cross-disciplinary investigation into processes of negotiating religion and religious diversity, the contributors present new insights on the meaning and substance of negotiation itself. This volume draws on diverse historical, sociological, geographic, legal and political theoretical approaches to take a close look at the religious and political agents involved in such processes as well as the political, social and cultural context in which they take place. Its focus on the European experiences that have shaped not only the history of 'negotiating religion' in this region but also around the world, provides new perspectives for critical inquiries into the way in which contemporary societies engage with religion. This study will be of interest to academics, lawyers and scholars in law and religion, sociology, politics and religious history.

This handbook provides a comprehensive and authoritative state-of-the-art review of the current and emerging research and policy on disability law. Bringing together a team of respected and experienced experts, the handbook offers a range of jurisdictional and multidisciplinary perspectives. The authors consider historical and contemporary, as well as comparative perspectives of disability law. Divided into three parts, the contributors provide a comprehensive reference to the theoretical underpinnings, ongoing debates and emerging fields within the subject. The study provides a strong basis for consideration of contemporary disability law, its research foundations, and progressive developments in the area. The book incorporates interdisciplinary and comparative country perspectives to capture the breadth of current discourse on disability law. This handbook provides a valuable resource for a wide range of scholars, public and private researchers, NGOs, and practitioners working in the area of disability law, and across national and transnational disability schemes. The work will be of important interest to those in the fields of sociology, history, psychology, economics, political science, rehabilitation sciences, medicine, technology, and law, among others.

This volume presents an analysis of controversial events and issues shaping a rapidly changing international legal, political, and social landscape. Leading scholars and experts in law, religious studies and international relations, thoughtfully consider issues and tensions arising in contemporary debates over religion and equality in many parts of the world. The book is in two parts. The first section focuses on the anti-discrimination dimension of religious freedom norms, examining the developing law on equality and human rights and how it operates at international and national levels. The second section provides a series of case studies exploring the contemporary issue of same-sex marriage and how it affects religious groups and believers. This collection will be of interest to academics and scholars of law, religious studies, political science, and sociology, as well as policymakers and legal practitioners.

This collection brings together some of the most influential sociologists of law to confront the challenges of current transnational constitutionalism. It shows the constitution appearing in a new light: no longer as an essential factor of unity and stabilisation but as a potential defence of pluralism and innovation. The first part of the book is devoted to the analysis of the concept of constitution, highlighting the elements that can contribute from a socio-legal perspective, to clarifying the principle meanings attributed to the constitution. The study goes on to analyse some concrete aspects of the functioning of constitutions in contemporary society. In applying Luhmann's General Systems Theory to a comparative analysis of the concept of constitution, the work contributes to a better understanding of this traditional concept in both its institutionalised and functional aspects. Defining the constitution's contents and functions both at the conceptual level and by taking empirical issues of particular comparative interest into account, this study will be of importance to scholars and students of sociology of law, sociology of politics and comparative public law.

The peace, order and good government (POGG) clause is found in the constitutions of almost all Commonwealth countries. Since its introduction, the clause has played a significant role in colonial and post-colonial constitutionalism in Commonwealth jurisdictions. This book is the first full length analysis of the various dimensions of the peace, order and good government clause. It argues that the origins of the POGG clause mark it out as an anachronistic feature of British constitutionalism when seen against a modern setting of human rights, liberty and democratisation. The book traces the history, politics and applications of the clause through the colonial period in Commonwealth territories to date. It provides critical evaluation of the POGG clause in a cross-continental enquiry, examining statutory, political and constitutional deployment in Australia, Canada, India, Nigeria, South Africa and the United Kingdom. The evaluation demonstrates that the POGG clause has relevance in a number of significant aspects of legal and socio-political ordering across the Commonwealth featuring prominently in the federalism question, emergency powers and the review of administrative powers. It maintains that while the clause is not entirely devoid of positive value, the POGG clause has been used not only to further the objects of colonialism, but also authoritarianism and apartheid. This book calls for a rethink of the prevailing subjective approach to the interpretation of the clause. The book will be of interest to students and academics of public law, human rights law, and comparative politics.

In the aftermath of the last financial crisis, on both sides of the Atlantic banking supervisors were given new supervisory and enforcement powers, which are often of a substantially punitive-criminal nature. In Europe in particular, the establishment of the Single Supervisory Mechanism within the European Central Bank substantially increased centralised investigatory and sanctioning powers. This major innovation, together with the development of forms of real-time monitoring of banking (often digital) records, challenges traditional banking criminal investigations in their national-based and analogue dimension.The book offers a comprehensive account and perspective analysis of the interactions between the criminal and administrative nature of such new powers, highlighting their "punitive" overall nature and their impact on fundamental rights. Covering both the US and the EU regulatory frameworks, it presents unprecedented, trans-systemic research between criminal law and procedure, and between regulatory and administrative law, at the international, European and national level.The book also includes a rich and detailed selection of case law from the US and the European supreme courts, with a specific focus on CJEU and ECtHR decisions.

This open access book provides a comprehensive analysis of the socioeconomic determinants of Covid-19. From the end of 2019 until presently, the world has been ravaged by the Covid-19 pandemic. Although the cause of this is (obviously) a virus, the extent to which this virus spread, and therefore the number of infections and deaths, was largely determined by socio-economic factors. From this, it follows that the course of the pandemic varies greatly from one country to another. This observation applies both to countries' resilience to such a pandemic (which is mainly rooted in the period preceding the outbreak of the virus) and to the way in which countries have reacted to the virus (including the political choices on how to respond). Meanwhile, research has made it clear that the nature of this response (e.g., elimination policy, mitigation policy, and proceeding herd immunity) was, on the one hand, strongly determined by political and ideological factors and, on the other hand, was highly influential in the factors of success or failure in combating the pandemic.The book focuses on the situation in a number of Western regions (notably the USA, the UK, and the EU and its Member States). The author addresses the reasons why in many Western countries both pandemic prevention and response policies to Covid-19 have failed. The book concludes with recommendations concerning the rearrangement of the socio-economic order that could increase the resilience of (Western) societies against such pandemics.

Health rights litigation is still an emerging phenomenon in Africa, despite the constitutions of many African countries having provisions to advance the right to health. Litigation can provide a powerful tool not only to hold governments accountable for failure to realise the right to health, but also to empower the people to seek redress for the violation of this essential right. With contributions from activists and scholars across Africa, the collection includes a diverse range of case studies throughout the region, demonstrating that even in jurisdictions where the right to health has not been explicitly guaranteed, attempts have been made to litigate on this right. The collection focusses on understanding the legal framework for the recognition of the right to health, the challenges people encounter in litigating health rights issues and prospects of litigating future health rights cases in Africa. The book also takes a comparative approach to litigating the right to health before regional human rights bodies. This book will be valuable reading to scholars, researchers, policymakers, activists and students interested in the right to health.

Table of Contents

Preface; Introduction: the relevance of health rights litigation in Africa, Ebenezer Durojaye. Part I The Normative Framework on the Right to Health: The normative framework on the right to health under international human rights law, Olubayo Oluduro and Ebenezer Durojaye; A human rights-based approach to realising access to sexual and reproductive health rights in sub-Saharan Africa, Gladys Mirugi-Mukundi. Part II Country Case Studies: The domestic legal enforcement of the right to health in Malawi: appraising the litigation potential, Enoch MacDonnell Chilemba; Litigating the right to health care in South Africa, Emma Justine Broster; Litigating the right to health in Uganda: the necessity for innovation and activism, Salima Namusobya; Litigating health rights issues: the Nigerian experience, Josephine Odikpo and Ebenezer Durojaye; The right to health in Mauritius: is the state doing enough or is the constitutional protection of the right to health still required?, Amar Roopanand Mahadew; Litigating the right to health in Kenya: an analysis of selected cases, Jacinta Nyachae and Paul Ogendi; Challenges in litigating the right to health in Mozambique: a critical analysis, Satang Nabaneh. Part III Comparative Regional Study: Keeping promises: litigation as a strategy to concretise the right to health in Africa, Judy A. Oder; The protection of the right to health through individual petitions before the inter-American system of human rights, Oscar Parra-Vera. Index.

Public participation has become a recurring theme and a topical issue in the field of international environmental law, with many multilateral environmental instruments calling on states to guarantee effectively the concept in their laws and practices. This book focuses on public participation in environmental governance, in terms of public access to environmental information and public participation in environmental decision-making processes. Drawing on the body of international best practice principles in environmental law and taking a comparative stance, Uzuazo Etemire takes Nigeria as a key case, evaluating its procedural laws and practices in relation to public access to information and participation in decision-making in environmental matters. In working to clarify and deepen understanding of the current status of environmental public participation rights in Nigeria, the book addresses key issues in environmental governance for developing and transitional countries and the potential for public participation to improve the state of the environment and public wellbeing. This book will be of great interest to undergraduate students (as further reading) and post-graduate students, academics, researchers, relevant government agencies and departments, policy-makers and NGOs in the fields of international environmental law, environmental justice, environmental/natural resource management, development studies and international finance.

In the years since 9/11 counter-terrorism law and policy has proliferated across the world. This book sets out a comprehensive survey of how the law has been deployed in all aspects of counter-terrorism. The handbook provides an authoritative and critical analysis of how laws are, and ought to be, invoked in domestic jurisdictions against terrorism. With a comparative approach the focus is on those jurisdictions which have produced legal innovations with a sizeable impact, primarily the USA, the UK, Australia, Canada, France, Germany and the European Union. The never before published contributions to the book are written by experts in the field of terrorism law and policy, allowing for discussion of a wide range of regulatory responses and strategies of governance. The book is divided into four parts: the boundaries and strategies of national counter-terrorism laws; the pursuit of terrorists through national criminal process and executive measures; protective security; and preventive measures.The chapters engage with areas of traditional interest to lawyers such as policing and special powers, criminal offences and the courts, and prison regimes but also tackle emerging subjects including preventing radicalisation and protective/preparative security. In this way the handbook reflects the elements of counter-terrorism laws which are more transformative of mass movements and transactions alongside prosecutions or orders aimed at particular individuals.

In considering diffusion from a global perspective, this book provides timely new insights into its application in a variety of fields and at many levels of both legal and non-legal orderings. This collection contributes to the wider theoretical debate concerning the movement of law and legal norms by engaging with concrete examples of legal diffusion, in jurisdictions as diverse as Albania, the Czech Republic, Poland and Kuwait. These examples, taken together, provide a comprehensive illustration of the theoretical debates concerning the diffusion of laws and norms in terms of both process and form. This international, multi-disciplinary and multi-methodological volume brings together scholars from law and social science with experience in mixed and hybrid jurisdictions, and advances the conversation about legal and normative diffusion across the academy. It represents a robust challenge to many preconceived ideas about legal movement and, as such, will be of interest to academics and students working in the fields of Law, Sociology, Anthropology, Political Science, Legal Education and comparative method.

Does constitutionalizing rights improve respect for those rights in practice? Drawing on statistical analyses, survey experiments, and case studies from around the world, this book argues that enforcing constitutional rights is not easy, but that some rights are harder to repress than others. First, enshrining rights in constitutions does not automatically ensure that those rights will be respected. For rights to matter, rights violations need to be politically costly. But this is difficult to accomplish for unconnected groups of citizens. Second, some rights are easier to enforce than others, especially those with natural constituencies that can mobilize for their enforcement. This is the case for rights that are practiced by and within organizations, such as the rights to religious freedom, to unionize, and to form political parties. Because religious groups, trade unions and parties are highly organized, they are well-equipped to use the constitution to resist rights violations. As a result, these rights are systematically associated with better practices. By contrast, rights that are practiced on an individual basis, such as free speech or the prohibition of torture, often lack natural constituencies to enforce them, which makes it easier for governments to violate these rights. Third, even highly organized groups armed with the constitution may not be able to stop governments dedicated to rights-repression. When constitutional rights are enforced by dedicated organizations, they are thus best understood as speed bumps that slow down attempts at repression. An important contribution to comparative constitutional law, this book provides a comprehensive picture of the spread of constitutional rights, and their enforcement, around the world.

This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test - suitability, necessity, and balancing - it considers the nature of these 'facts' vis-a-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.