Richard P. Boast
This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.
This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
This chapter examines the scholarship in the new and growing field of study of Islamic animal law. It starts by defining the field of animal law generally and then explaining what makes animal law scholarship Islamic. Turning to Islamic animal law, the chapter first explains the origins of the field and then discusses contemporary Islamic animal law scholarship, which dates to the early-twenty first century and has focused on questions of purity and the dog; causing animals harm; anthropocentricism; and slaughter and the designation of halal. The chapter concludes by identifying promising areas for future scholarship.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
Disputes involving Olympic athletes can arise from a wide range of decisions made by a host of entities. A disputed decision may involve the eligibility of an athlete, employment of coaches and staff, organizational governance, doping, and commercial contracts. Three disputes involving athletes and the modern Olympic games show how arbitration has come to play a central role in resolving contested decisions of sporting associations. First, the case of sprinter Harry Reynolds illustrates the limitations of using national courts to challenge doping-related sanctions. Second, the eligibility struggles of Oscar Pistorius demonstrate how athletes and national sporting associations can benefit from arbitration’s efficiency. Finally, the case of Claudia Pechstein offers a recent example showing the deference given arbitration by national courts, for better or worse.
The sports agent performs a critical function as an intermediary between management and athletes by handling contract negotiations, endorsements, financial planning, and other associated activities. This chapter provides a history of athlete representation beginning in the 1920s with the efforts of Christy Walsh and Charles C. Pyle through the increased role of players associations during the final third of last century. In the 1980s, professional associations and state legislatures launched efforts to regulate agent behavior as a reaction to evidence of abuse. In the 2000s, these problems prompted the National Conference of Commissioners on Uniform State Laws to introduce the Uniform Athlete Agents Act, a legislative initiative ultimately adopted by over 80% of states, and the U.S. Congress passed the Sports Agent Responsibility Trust Act. Both initiatives addressed the tension between the NCAA’s amateurism standards and efforts by agents to attract clients before the completion of their eligibility.
Alexandra J. Roberts
This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.
This article explores the relationship between respect for individual autonomy and the law governing end-of-life treatment in the United States. It begins with a review of the law governing treatment decision-making for competent adults, incompetent adults, and children. It then turns to the issue of determining death. After that, the article discusses the limitations of the autonomy-based approach in addressing three areas of end-of-life law: “futile” treatment disputes, treatment decisions for incompetent patients, and access to physician-assisted death. It concludes that courts and other legal decision-makers will face pressure to consider the proper role of quality of life, cost, medical judgment, and patient vulnerability in determining end-of-life law.
This chapter examines how civil liability assessments and criminal convictions have affected the legality of blood sports. Blood sports can be divided into three categories: human versus human contests, human versus animal sports, and animal versus animal fighting. For over a century, blood sports have been under both social and legal attack, resulting in significant changes in most of the historic forms of combat worldwide. The chapter begins with an overview of the most popular violent sports today, including contact sports such as American football and ice hockey. It then considers criminal prosecutions and civil lawsuits that arise from contact sports, including the “concussion suits” filed on behalf of athletes who suffered head injuries. It also discusses the doctrine of assumption of risk in sports and concludes with an analysis of how legislative intervention can obviate private tort liability for latent, chronic injuries to the brain of players.
This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.
The capture and long-term storage of carbon dioxide from power plants and other industrial installations may prove a key technology in climate change abatement strategies. Regulatory frameworks for carbon capture and storage (CCS) are now being developed in a number of jurisdictions. The European Union produced the first comprehensive legislation on the subject in 2009, which provides a compelling example of challenges associated with the design of regulation dealing with a novel technology. This chapter identifies three issues, each of which reflects aspects of regulatory legitimacy: the extent to which states within a federal or quasi-federal system should have the legal discretion to reject a technology; the way in which regulation provides for opportunities for public participation and engagement in issues concerning the new technology; and whether, and at what point, the state should assume responsibility for storage sites, given the long timescales necessary for secure storage.
This chapter explores some challenges that arise in respect of the regulation of human enhancement. It opens by advocating a definitional pluralism that acknowledges the existence of many concepts of human enhancement. These highlight different moral concerns about the application of genetic and cybernetic technologies to human brains and bodies. I identify one concept that is particularly effective at expressing the upsides of human enhancement. Another concept serves better to reveal enhancement’s downsides. I describe a further concept that reveals moral issues connected with great degrees of human enhancement. The chapter concludes with a discussion of attempts to regulate enhancement in elite sport. I defend the efforts of the World Anti-Doping Agency (WADA) to keep artificial means of enhancement out of sport.
The concept of citizenship denotes a legal status, an identity, and a range of distinctive activities and practices. These dimensions of citizenship are unified by the fact that they are all underpinned by a unifying and universalist logic. Modern societies are culturally diverse. Many of them are constitutively diverse, in that cultural diversity was present at their founding. Others are contingently diverse, in that they have been subject to processes such as immigration that has diversified them after founding. Many arguments have been developed to show that there are strong grounds, compatible with a broadly liberal political ethics, to resist arguments for shared citizenship in the context of constitutively culturally diverse societies. But contingently culturally diverse societies, to the degree that they recognize and enforce individual rights, are also ill-equipped to enforce a thick shared citizenship identity. Perfectionist arguments for citizenship fall foul of liberal principles. Rather than a shared identity or shared obligations imposed by the state, multicultural societies can see the emergence of shared identities and ethos emerging “from below”.
The relationship of citizenship and human rights has become a central issue for contemporary politics. This chapter begins with a brief overview of theories of human rights, before addressing two pivotal topics for this relationship: a human right to citizenship (as membership of a state) and a human right to democracy. It then turns to consider the practical salience of the international human rights regime for citizenship and human rights, before concluding with a discussion of the relationship of human rights as cosmopolitan norms to the principle of the self-determination of peoples.
In the 20th century, nation-states became the dominant form of political community around the world. Yet, aided by transportation and communications innovations, many 21st century states are forming regional partnerships; accepting dual or multiple national and transnational citizenships; and granting forms of “quasi-citizenship” to many who reside outside their boundaries but still have special relationships with those states, or who reside within them without full citizenship. What are states’ duties to the residents of their regional partners, to their former colonies, and to those who hold forms of “quasi-citizenship”? Many obligations arise from treaties and statutes. But constitutional democracies also have moral duties toward those whose identities and aspirations they have substantially shaped through their coercively enforced policies. Those duties may include obligations to provide financial aid, to permit immigration, to grant regional or group political autonomy, to extend full formal citizenship, to offer opportunities for voice and contestation, or any of a range of other options.
Citizenship in this chapter means membership of a state. Nationhood means membership of a “nation”, which is a particular type of cultural and/or ethnic collective. I first set out the reasons that liberals and anti-liberals have given for making citizenship and nationhood coterminous. Second, I describe the major historical and sociological explanations that were advanced for the processes that helped create this overlap, the methods that states and other political agents have adopted to realize it, and the practical and moral obstacles that these agents have always faced. Third, I discuss the positions of contemporary liberals on the issue, including the position I believe to be appropriate. The discussion concludes that the ideal of full overlap between citizenry and nationhood should be rejected both constitutionally and certainly demographically. However, it endorses arrangements allowing for a limited identification of states’ citizenries with one or a few national groups.
This chapter analyzes the national citizenship regimes adopted by newly independent states and factors that influence the content of these regimes. The chapter examines how the goal of attaining state sovereignty, different visions of and debates over the boundaries of the national community in whose name the new state is constituted, perceived implications of citizenship rules for political and economic power of different groups, and external actors, including other states in the region and international organizations, inform the content of citizenship regimes in new states.
Technological developments have complex, ambiguous and sometimes contradictory effects of on the institutions, norms and practices of citizenship. The chapter investigates the relationship between technology and citizenship by exploring the tensions between inclusion and emancipation, on the one hand, and exclusion and control, on the other hand. It discusses inclusionary and exclusionary aspects of developments in the areas of digital and biotechnologies in respect to access to legal status, political participation, and identity. It also examines the emancipatory potential of technologies at the level of citizenship practices and issues related to social and political control, which are triggered by increased and pervasive surveillance. The chapter suggests that the tensions between citizenship and technology are not inherent but rather derived from the circumstances in which technologies are adopted, the ways in which they are used, and the ongoing political struggles over citizenship.
The struggle for universal suffrage has been a paradigmatic political struggle in the modern state, as people have striven to achieve full and equal citizenship. This chapter examines - from a conceptual, legal and historical perspective - the ‘selection’ of voters as one of the core hallmarks of citizenship in modern democracies. It explores the ways in which the ideas and practices of citizenship intersect with the right to vote, allowing us to probe the contribution of citizenship as a legal status underpinning the definition of the franchise to democratic self-government as a political ideal.
“There are some things that money can’t buy.” Is citizenship among them? This chapter explores this question by highlighting the core legal and ethical puzzles associated with the surge in cash-for-passport programs. The spread of these new programs is one of the most significant developments in citizenship practice in the past few decades. It tests our deepest intuitions about the meaning and attributes of the relationship between the individual and the political community to which she belongs. This chapter identifies the main strategies employed by a growing number of states putting their visas and passports “for sale,” selectively opening their otherwise bolted gates of admission to the high-net-worth individuals of the world. Moving from the positive to the normative, the discussion then elaborates the main arguments in favor of, as well as against, citizenship-for-sale. The discussion draws attention to the distributive and political implications of these developments, both locally and globally, and identifies the deeper forces at work that contribute to the perpetual testing, blurring, and erosion of the state-market boundary regulating access to membership.