Concludes that presidential pardon power should be abolished in its current form, either by removing pardon power entirely from the Constitution or conferring pardon power on Congress or giving Congress a veto over pardons. Contends that this should be done because pardons no longer serve their original purposes in the federal criminal justice system, because they should not be used as instruments of law reform, and because pardons have now been repeatedly proven to be dangerous to the constitutional rule-of-law order.

In this chapter we consider how the different ethical approaches (adversarial advocacy, responsible lawyering, moral activism and ethics of care) are informing lawyers’ actions on behalf of the planet. Of course, many lawyers will draw from several ethical approaches in their work. Likewise, all four approaches can support efforts at law reform, which we discuss later in the chapter.As the law evolves to better address the dangers of climate change and environmental degradation, the advice lawyers give clients will change. Eventually, we surmise (and hope), lawyers will be advising even recalcitrant clients that to act legally they must act in ways that do not harm the environment. Until such time, a lawyer’s ethical approach will influence their advice and their daily legal practice. Lawyers can draw on the strengths of several or all of the ethical approaches discussed to empower them to step up to the task ahead. We cannot avoid this task.

By 1647, the abolition of imprisonment for debt had become a staple of radical demands. Yet like so many radical projects, it ultimately suffered defeat and moderation. Chapter 8 traces the rise and fall of the abolitionist campaign, and the legacy of prison reform in the later seventeenth century. First, it follows arguments for abolition and the activists who made them into the new political and intellectual context of the English republic, revealing the significance of prison activism and arguments for abolition in debates over the future of the English polity. Yet these activists struggled to secure the change they envisioned. Worse still, their ideas dwindled in significance after the restoration of Charles II, giving way to prison campaigning that prioritised moderate calls for episodic relief and the reform of conditions. Yet, this also involved ambitious nationwide campaigning, connecting central prisons with county gaols for the first time. This led to increased concern with local inspection, due process and penal proportionality that anticipated the eighteenth-century prison reform movement. By the end of the seventeenth century, many aspects of imprisonment for debt and prison campaigning settled into patterns that would define the institution for another two centuries.

Regulatory systems can be designed to surmount barriers and promote conditions for dealing with cumulative environmental problems using legal mechanisms that deliver four integrated functions: conceptualization, information, regulatory intervention, and coordination (the CIRCle Framework). Analyzing how a set of laws provides for these functions helps identify important weaknesses and gaps for improving laws. This chapter sets out a step-by-step guide to applying the CIRCle Framework and key design features for each function. It also highlights common themes that emerge from the book’s case studies, which center on environmental justice concerns related to groundwater in California’s Central Valley; cumulative impacts to the biodiversity of the Great Barrier Reef, Australia; and grasslands as biocultural landscapes in South Tyrol, Italy. Key themes point to the value of taking a wide view of relevant laws and available regulatory approaches and strategies and the importance of local factors, regardless of the governance scale of the problem. They show that integrating laws and functions can take time, but that evolution and improvement is possible.

Regulating subsidies and state enterprises is a challenging exercise since, arguably, no other area touches more directly on the state intervention in the economy and on the various ideas and interests surrounding it. Taking stock of the acquis in regulating subsidies and state enterprises in the World Trade Organization (WTO) and in preferential trade agreements (PTAs), this chapter aims to develop a conceptual framework to help think about new rules, using the notions of principles, standards, and rules, as well as those of institutions, procedures and remedies. The chapter also delves into the process necessary to produce such rules. Using this conceptual framework, the gist of the analysis is that, to a large extent, there is no need to reinvent the wheel but to build upon the status quo under the WTO and many PTAs – which, importantly, already reflects the common agreement of many governments. In terms of process to follow to generate new rules, the importance of transparency, knowledge-generating activities and epistemic communities is duly underlined.

Readers are presented with achievable reforms of laws and policies discussed in earlier chapters.

Examining the history and institutions of the legal systems in Afghanistan, we contend that there is an under-examined set of plural legal systems – those where different legal traditions remain in continual contention. Unlike mixed legal systems, these plural legal systems are not composed of mixed, blended, or accommodated models, but of conflicting legal influences that fail to create a well-functioning legal order, contributing to social and political conflicts. In this chapter, we first discuss the different characteristics of divided legal systems. Next, we explain why Afghanistan has failed to overcome the problem of a divided legal system.

In 1969, David A. Morse received the Nobel Peace Prize on behalf of the International Labour Organization (ILO). In his Nobel Lecture, the then Director-General (DG) explained how the organization contributes to ‘an infrastructure of peace’ by providing Member States with ‘a meeting ground’ for cooperation and dialogue. This meeting ground is characterized by tripartism and universalism, two qualities that make the ILO stand out. Tripartism, in which governments and workers’ and employers’ representatives discuss and decide on all ILO action, ‘was both the most daring and the most valuable innovation of the Peace Conference’. By setting up the ILO in tripartite fashion, the social dialogue between trade unions, employers’ organizations, and governments was presented as a viable approach to resolving social conflict. As Morse suggested, if tripartism ‘could be accepted and applied in Geneva, why not at home?’.

Indirect rule was integral to the colonial governance of religion. The state’s intimacy with Muslim elites gave rise to accusations of ‘Muslim sub-imperialism” by Protestant missionaries and other critics who argued that rather than hinging on the separation of the state from all religions, colonial governance entailed the “unblushing bolstering up of Islam.” This chapter argues that indirect rule did not amount to an elevation or even preservation of the caliphal governance ideals. Instead, that mode of governance entailed the transformation of those institutions. Indirect rule was, therefore, not only governance through ‘Islamic institutions,’ but more importantly, it was the governance of those institutions. That governance process culminated in the making of a distinct British colonial Islamic law. That colonial law emerged from the alteration of the precolonial constitutional balance of powers between jurists’ expositions of the Shari’a (fiqh), on the one hand, and political authorities’ jurisdiction over a law (“siyasa”), on the other. This chapter traces that transformation as central to the career of imperial secular governmentality in the colony.

This chapter chronicles the late colonial state’s elimination of Islamic law from public law through a Penal Code rooted in imperial law. The transformation of Islamic law since the inception of colonial rule belied the early colonial state’s claim to retaining Islamic criminal law. Nevertheless, the formal retention of the Shari’a in public law through Islamic criminal law had been a distinct feature of Northern Nigeria, underlining the formal status of Muslim elites and Islamic law. In response to the concerted criticism of missionaries, and senior colonial officials, the 1958 reforms abrogated the ceremonial status of Islamic law. Even as the 1958 Penal Code removed all illusions of the retention of Islamic law, administrators and Muslim elites legitimated the reform exercise by invoking Islamic legal authority, particularly the practice of Muslim societies. That discourse capaciously expanded the state’s power to regulate the content of Islamic law by re-casting the state’s Sharia-constrained siyasa jurisdiction as an expansive siyasa whose constitutional boundaries are drawn by the modern state. By so doing, the 1958 reforms sealed the state’s prerogative to govern religion.

Although law was placed at the centre of the development process in the Law and Development movement launched in the 1960s, there was limited understanding at the time of the factors necessary for borrowed laws to succeed in the adopting country. This chapter investigates the theoretical links between adoption and implementation of borrowed competition laws and integrates strands from comparative law, literature on policy diffusion and transfer, and new institutional economics to develop a framework for examining competition law transplants as they proceed along the deliberation–adoption–implementation continuum. This chapter argues that a borrowed law may be considered successful if it is understood, utilised, and applied in the borrowing country and continues to grow in and become a part of its pre-existing legal system. It further argues that this is only possible if the borrowed law is compatible with the context of the adopting country and enjoys a degree of legitimacy in it.

We are now in the Anthropocene, a time in the earth’s four-billion-year history when human activities are affecting the planet to such an extent that humans have become a ‘significant geological force’. The risks facing humanity also challenge the rule of law. Ideally, law operates to help keep a society stable, peaceful and ordered. Since law is ‘the principal means of implementing public policy’, law must evolve to play its part. Lawyers have a key role to play in assisting that evolution, and the ethics that govern lawyers’ work will play a large part in determining its success. This chapter focusses on the work of lawyers in addressing climate change and environmental damage. Such work raises important issues about lawyers’ role generally and the values and ethics underpinning that role. In this chapter we consider how the different ethical approaches (adversarial advocacy, responsible lawyering, moral activism and ethic of care) are informing lawyers’ actions on behalf of the planet. Of course, many lawyers will draw from several ethical approaches in their work. Likewise, all four approaches can support efforts at law reform, which we discuss later in the chapter.

This chapter concludes the book by charting a path forward for law reform. Suggestions for reform of the significantly more burdensome legal framework in Australia, as opposed to England and Wales, are presented. Throughout this book is a plea for the law to support, rather than impede, trans young people’s gender expression and bodily autonomy.

With the case for withdrawal remedies made and critical comparative analysis of several jurisdictional variants conducted earlier in the book, Chapter VIII integrates insights from the theoretical and comparative analyses into a jurisdiction-neutral model withdrawal solution. This ‘Model Remedy’ gives effect to private ordering arrangements and offers judicially administered solutions where contract is absent or otherwise defective. Chapter VIII also explains the Model Remedy’s key features: a trichotomous classification of withdrawal grounds (fault, non-fault, and at will), and a combination of mandatory, sticky default, and default rules and standards differentiated by the grounds involved. Drawing on and improving upon existing legal regimes, the Model Remedy provides practical guidance on the design and implementation of calibrated withdrawal solutions responsive to a broad range of scenarios. It will be useful for legislators and judges seeking to address intracorporate conflicts in close corporations, and for legal practitioners drafting close corporation constitutions and shareholder agreements.