Abortion and Reproductive Rights

This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.

A Transnational Concept of Law

Most of the legal theory of the last four centuries, in the Western world, has been state-centred. It has justified the existence of states, facilitated their expansion, conceptualized their sources and structures, sought to resolve their conflicts, and developed their law. The state has even been taken, in much of this writing, as the exclusive source of law. There are indications, however, that this theoretical preoccupation with state structures, state institutions, and state laws may now be in decline. This would be a significant development, a historical shift in emphasis in the conceptualization of Western law. It would not, however, mean the end of states or of state law, but rather their contextualization. States and state law would exist in a larger field of normativity. This would entail recognition of a wider range of sources of law and a wider range of relations between laws and between peoples. To attempt to understand these processes, and the extent of their progression, this article examines what we know, or think we know, of the relations between law and the state, before turning to current efforts to develop a transnational concept of law.

International Legal Sanction Processes

This article views international legal sanction processes as richly varied and dynamic, involving numerous types of participants, with various sanction objectives, operating in both formal and less formal fora or processes, utilizing various types of resources, with varied effects and long-term consequences. It identifies certain areas of debate and suggests a future scholarly agenda. With that in mind, it is evident that increasing attention to the creation, shaping, and efficacy of international law outside such traditional institutional settings should be part of a future scholarly agenda regardless of one's jurisprudential bias. The discussion covers participants in the sanction process, sanction objectives, formal fora, less formal processes, and more specific sanction strategies or problems.

Human Rights

This article begins with a brief discussion of what human rights are. It then considers the international treaties which have emerged to protect human rights in national legal systems, focusing on aspects of the scholarship which has developed alongside the cascade of these rights from international law to constitutional law to ordinary municipal law. This is a process which has been controversial as human rights and democracy are seen by some to be mutually dependent, but by others to be engaged in an abrasive struggle for superiority on the battleground of ideas.

Contract

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Families

Family law is largely an aggregation of instrumental legislation, designed to achieve specific social and political purposes. Unlike disciplines that take a legal concept as its starting-point — such as contract, trust, or restitution — family law tends to be more than usually susceptible to shifts in politics and social behaviour, and the complex interplay between the two. This means that a dominant theme of family law scholarship has been that of change and transformation. This article offers a brief history of these transformations in family law, and describes how change has been described and analysed. This historical narrative provides a framework for a discussion of the debates that have characterized the discipline in the latter part of the twentieth century.

Equity Property and Obligation

Equitable property, especially as illustrated in the trust, and equitable obligations, especially fiduciary obligations, are without precise civil law counterparts. This ought to have marked these areas out as prime candidates for innovative and inventive common law and comparative scholarship. Instead, even at the turn of the century, modern equity scholarship is still overwhelmingly devoted to doctrinal analysis that seeks simply to define and understand these equitable concepts. The legal concepts underpinning equitable property and equitable obligation are difficult, and proper definition is important to coherent development of the law's practices. This article discusses the following: ideas of equitable property, fiduciary law scholarship, and the common law-equity divide.

Law as an Autonomous Discipline

This article considers claims about the ‘autonomy of law’. These are that that legal reasoning is different from other forms of reasoning; that legal decision-making is different from other forms of decision-making; that legal reasoning and decision-making are sufficient to themselves, that they neither need help from other approaches nor would they be significantly improved by such help; and that legal scholarship should be about distinctively legal topics (often referred to as ‘legal doctrine’) and is not or should not be about other topics.

Property

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The next three parts use this trilogy to show how defining, integrating, and constructing these ideal types can lead to useful innovation in property theory. In sum, property theory scholarship seems to work cyclically — reasoning from real-world contests over scarce resources, to analytic tools that translate these struggles into useful conceptual terms, to jurisprudential debates regarding the rightness of resulting allocations, to practical politics that implement one property regime or another, and then back to new on-the-ground struggles.

The Nature and Functions of the State

For much of last century it was taken for granted in many countries that it was the duty of the State to care for its citizens ‘from cradle to grave’: to provide education, pensions, medical services, and public utilities, and to hold out a safety net for the less fortunate so that they had food, shelter, and the other necessaries of life. Since the late 1970s, however, these functions of the State have been put in question by the worldwide march towards privatization. The privatization movement was said to be a response to budget deficits and mounting public debt, perceived inefficiencies in government operations, and a loss of faith in the ability of governments in the developed world to meet the expectations of their citizenry of an ever-increasing standard of living. This article discusses the influence of economic theory on the privatization movement; the impact of changes in the economy (namely, the privatization movement) on law, particularly legal scholarship; the meaning of privatization; the public/private law divide; and privatization in the UK; corporatization and public sector reforms; deregulation; and contracting out.