This article concerns the legal issues that surround the prohibition of doping in sport. The current policy on the use of performance enhancing drugs (PEDs) in sport is underpinned by both a paternalistic desire to protect athletes' health and the long-term integrity or ‘spirit’ of sport. The policy is put into administrative effect globally by the World Anti-Doping Agency (WADA), which provides the regulatory and legal framework through which the vast majority of international sports federations harmonise their anti-doping programmes. On outlining briefly both the broad administrative structures of international sport's various anti-doping mechanisms, and specific legal issues that arise in disciplinary hearings involving athletes accused of doping, this article questions the sustainability of the current ‘zero tolerance’ approach, arguing, by way of analogy to the wider societal debate on the criminalisation of drugs, and as informed by Sunstein and Thaler's theory of libertarian paternalism, that current policy on anti-doping has failed. Moreover, rather than the extant moral and punitive panic regarding doping in sport, this article, drawing respectively on Seddon's and Simon's work on the history of drugs and crime control mentality, contends that, as an alternative, harm reductionist measures should be promoted, including consideration of the medically supervised use of certain PEDs.

This paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

Muslim divorce practice is a feminist issue, insofar as it often departs from core principles of Anglo-American divorce law. When legal feminists have examined the reception of Muslim divorce practice in common-law courts, they have tended to measure those departures in terms of financial outcome. There is a danger that, in consequence, our theory of Muslim women's legal agency is reduced to pragmatic matters of choice, money and advantage-taking. That theory seems hugely impoverished when read against the political background in Britain, where Muslims‘ legal agency upon divorce is bound up with deeper questions of belonging and allegiance. Feminist work ought to be able to advance a theory of citizens’ commitment to civil law in litigation which can give a complex account even of the unsettling litigation of Muslim divorce disputes in civil courts. This article draws on existing work in feminist multiculturalism to sketch the beginnings of that theory.

Calls for the adoption of a universal capacity approach to replace dedicated mental health law are motivated by the idea that the measures designed to protect patient autonomy in legislation such as the Mental Capacity Act 2005 should apply to everyone, including people with a psychiatric diagnosis. In this article it is argued that a diachronic perspective on questions of mental capacity is necessary if capacity law is to play this broader role, but that employing this perspective in assessments of capacity undermines central patient autonomy preserving features of the legislation, which presents a moral dilemma.

This paper develops the concept of peripheral governance as a kind of legal transnationalism that is being generated by responses to outward travel for health care. I argue for a recuperation of the ‘peripheral’ in order to think through the ways in which marginal actors and marginal objects contribute to transnationalism. The paper draws on the idea of networked governance, nodal governance in particular, to capture governance mechanisms that have emerged in response to outward flows for health care. Peripheral governance comes into being through the cultivation of dependency on core provision of health care in other jurisdictions and by focusing domestic provision on those services (information, counselling, check-ups), which lie on the margins of health care. Peripheral governance has four key technologies: non-development, exit, use and return. These technologies illustrate how state agencies may actively mobilise the peripheral as they claim to address local needs through participation in the regulation of cross-border health care. In so doing they configure a conception of the peripheral that does not want to become core, participates in transnational networks on its own terms, and focuses on marginal objects of health care. I develop this account of peripheral governance through a critical reading of the strategies that the Irish Crisis Pregnancy Agency has adopted in response to women's practices of travelling for abortion care.

This paper attempts first to explain Bentham's distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham's ontology and epistemology, and more specifically the tension between the objectivist and subjectivist Bentham. It is argued that Bentham's objections to legal fictions were traceable to their use in deceptive or fallacious argument, whilst his logic provided a means of rehabilitating the use of the names of those fictitious entities which could be explicated through his technique of paraphrasis (that is, explained in terms of real entities), in relation to which both meaning and truth might be exchanged. This realist perspective differs markedly from that of Fuller, who, following Vaihinger, rejects the attempt to replace fiction with truth. There are significant areas of agreement between Bentham and Fuller, on the figurative nature of much language, and even, in certain contexts, on the utility of the self-conscious deployment of fictions. However, in the context of law and morality, it appears that his development of a route to truth through paraphrasis makes Bentham the enemy of fictions, since, in this field at least, truth and utility stand or fall together.

There is now a well-established ‘spatial turn in law’. However, it remains oriented towards notions of space rather than law. How, then, to capture both the spatiality of law and the legality of space? This article draws on Bruno Latour's concept of the legal construction of the ‘social’ to explore the assemblage of the city of law. It shows how law functions as a particular form of association in urban life by tracing two key forms of urban legal association in London, the city of law. The first form is ‘legal ordering’. This seeks to order urban life through domination, and includes citadel law, police law and laws of exception. The second is ‘legal consociations’, which build new forms of urban life, such as urban rights, the rights of the city and the right to the city. Finally, the article explores the creation of a spatial justice that can build more just legal associations.

Faith schools have (re)gained an increasingly prominent place within the public education system in the UK. Whilst the former Labour government expanded the number of state-funded faith schools during its terms in office, they continue to be supported by the current coalition government. The expansion of faith schooling has continued despite widespread opposition attributing much of the religious divisions and lack of community cohesion within society to faith schooling, particularly after ‘race riots’ in the north of England in 2001. This article does not seek to contribute to the largely polarised debate arguing either for or against faith schools. Instead, I explore how religion circulates in governmental discourse supporting faith schools and the sociopolitical work it does through law. I focus on the key contention put forward particularly by the former Labour government that faith schools, contrary to being divisive, can actually play an important role in the promotion of community cohesion, precisely because of the values and ethos of these schools. I examine how this governmental discourse is influenced by social capital and communitarian theories that highlight the role of Christian or church school values in fostering citizenship and community cohesion through education. I suggest that the influence of these theories on government policy has led to church schools becoming a benchmark for other schools to emulate, especially where they embody state/British values which are sometimes posited as being universal and secular. Rather than the expansion of faith schools being a policy that supports schools of all faiths, Muslim schools in particular have been singled out as posing a potential ‘threat to the nation’ and the social cohesion within it. In addition, I argue that the often invisibilised normative influence of de-theologised Christian/secular values plays a role in regulating the boundaries of ‘acceptable’ religion. The potential effects of delimiting religion through the discourse of values, coupled with the engendering of citizenship and belonging of children from minority religious/ethnic backgrounds within the education system, might also be viewed as effectively resulting in a form of ‘racial upliftment’. My analysis draws on critical religion and race perspectives that remain largely absent within socio-legal scholarship on law and religion and indeed citizenship. One exception is more recent scholarship on gender and the banning of Muslim religious dress in schools and other public spaces, and the recognition of certain areas of Muslim family law within Western legal systems. However, analyses that attend to the contingent ways in which religion can circulate and be produced through law relating to children are urgently needed alongside those attending to gender.

On the basis of detailed interviews of females aged between fifteen and twenty-six years with a diagnosis of anorexia nervosa we argue that the autonomy of people with this condition may be severely compromised in four ways, particularly in relation to eating and weight. First there are problems with agency. Second, affective components, particularly anxiety, can dominate beliefs such that the grounds for making a decision may differ from the reasons given in justification. Third, the interactions between the affective components and the objective evidence lead to substantial inner conflicts with resulting lack of stability in preferences and beliefs. Fourth, this lack of stability leads to concerns around identity and authenticity. We argue that some of the ways in which autonomy is compromised reduce competence to decide on treatment. We suggest that these results may be relevant to other mental disorders and have clinical and policy implications.

Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the ‘legal fiction’ label to signal those writers' sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognised as self-justifying may have become less distinct over the past century.

Based on an ethnographic study located in Botswana, I move beyond conceptions of the local as physically or territorially grounded to one that examines how it is constituted through links between persons and land derived from life histories extended over several generations. This not only takes account of a specific site in which social relations are bounded and locally constituted but also of how perceptions of locality are discursively and historically constructed. Viewing land as both a tangible and intangible universe constructed through social relationships, I highlight ways in which individuals, as part of a ‘local’ community, find their life courses shaped by wider transnational and global processes, including law, that have an impact on their everyday lives. For some, this provides opportunities for upward mobility and future gains, while others find scope for action severely curtailed. In documenting these uneven, diverse effects of globalisation, what emerges are processes of ‘internalisation’ and ‘relocalisation’ of global conditions, allowing for the emergence of new identities, alliances and struggles for space and power within specific populations. Thus what exists in the here and now as a form of temporality is constantly remade, drawing on the past while fashioning new prospects for the future.

The UK Mental Capacity Act provides an important legislative framework for protecting persons who are vulnerable, by virtue of partial or total lack of capacity, from abuse, coercion, exploitation, disrespect or unwarranted intrusions on their privacy and liberty. In this article we argue, however, that in order to effectively implement the Act's governing principles and promote the autonomy of persons whose capacities are impaired, health and social welfare professionals must go beyond a primarily cognitive approach to capacity assessment and refer to a range of more demanding autonomy conditions relating to authenticity, diachronic coherence and consistency, accountability to others, and affective attitudes towards oneself. We suggest that these conditions are in fact implicit in the guidelines, scenarios and practical advice contained in the Act's accompanying Code of Practice. To ground our analysis, we discuss two cases of end-of-life decision-making, and consider how these cases might have been assessed had the Mental Capacity Act been applied. We also address the question of whether the conditions for autonomy we identify raise the bar too high to be met by persons who are vulnerable because their capacity is partially compromised.

The debate surrounding judicial recognition of faith-based arbitration is typically framed as a multicultural contest between the liberal, gender-equal neutrality of public law and the patriarchal particularity of religious law. Within this framework, the state is understood as advancing the goal of protecting the ‘encultured subject’ from the disempowering effects of her religion. The author departs from this trend by reading the Canadian controversy over Islamic family law arbitration against a legal landscape that already authorises and encourages parties to settle matters of property division and support through private ordering. The author argues that faith-based arbitration and its normative driver, multiculturalism, were already nested within the domain of privatisation and neoliberal ideals of choice, liberty and autonomy. Facilitation of private ordering in family law paved the way for faith-based arbitration. Through a close reading of Supreme Court of Canada family law jurisprudence about the enforcement of marital contracts, the author argues that concerns more properly directed at privatisation per se have been aimed at the putative content of religious norms. The author offers a policy proposal that addresses these concerns as they arise in the context of faith-based arbitration.

Political liberalism suggests state power must be exercised and justified on terms all citizens can reasonably be expected to endorse, independently of their comprehensive identities or worldviews. For Rawls, a democratic community cannot be united by any shared ends or identities other than those connected with the political conception of justice itself. Republican political thought often seems to undermine this ‘liberal principle of legitimacy’ through its stronger demands of social cohesion and participative civic virtue. Conversely, however, it generally seeks to define citizenship independently of any non-political commonalities citizens might be assumed to share. This theoretical tension was reflected in recent French republican discourses on Islam, gender and national identity. France's recent prohibition on public face-veiling coincided with an officially orchestrated debate on national identity which seemed to challenge the traditional republican conception of national identity as a purely civic and political construct. While couched in republican terminologies, these recent discourses seemed to understand the principle of laïcité, or constitutional secularism, as a bulwark for the pre-political dimensions of national identity. Accordingly, this article outlines how these discourses on religion and gender illuminated tensions and contradictions within the prevailing republican account of national identity.

The previous decade has seen a wealth of studies into the potential legal problems of citizens, problems that could have or did result in legal procedures. Although this has greatly enhanced our understanding of the kinds of difficulties that citizens experience and the frequency with which this happens, some important topics have received little attention. This is especially true for the explanation of the chances that people have or the choices they make regarding the problems they face. In part, this is the result of the chosen approach, which was aimed at description and lacked the rigour needed for explanation. In this article, I will argue that in order to make progress regarding these topics, it is necessary to use a theory-driven approach. What a theory-driven approach is and what such an approach would look like when applied to the paths to justice field, is demonstrated with regard to the way in which small and medium-sized enterprises (SMEs, companies with less than 100 employees) in the Netherlands deal with potential legal problems (Croes & Maas, 2009).

Mental capacity and autonomy are often understood to be normatively neutral – the only values or other norms they may presuppose are those the assessed person does or would accept. We show how mental disorder threatens normatively neutral accounts of autonomy. These accounts produce false positives, particularly in the case of disorders (such as depression, anorexia nervosa and schizophrenia) that affect evaluative abilities. Two normatively neutral strategies for handling autonomy-undermining disorder are explored and rejected: a blanket exclusion of mental disorder, and functional tests requiring consistency, expression of identity, reflective non-alienation or lack of compulsion. Finally, we suggest ways in which substantivist alternatives to neutrality can be made more promising through increased transparency, democratic contestability of conditions for capacity and autonomy, and a historically sensitive caution concerning restrictions of liberty.

In the popular imagination, legal proceedings and their rules of law are thought of as paths to unalloyed truth. Both practitioners and scholars know this is often not the case because the law is, as are other domains, riddled with fictions. Indeed, the law sometimes borrows fictions from other domains to help it achieve results that would otherwise be unobtainable. One such place is securities law, in which courts in the United States have borrowed the concept of the ‘efficient market’ from economics to make fraud class actions possible. But that concept is – if not wholly – at least in good measure fictional.