Jennifer Hendry

Reason and Paradox in Medical and Family Law: Shaping Children’s Bodies

Legal outcomes often depend on the adjudication of what may appear to be straightforward distinctions. In this article, we consider two such distinctions that appear in medical and family law deliberations: the distinction between religion and culture and between therapeutic and non-therapeutic. These distinctions can impact what constitutes ‘reasonable parenting’ or a child’s ‘best interests’ and thus the limitations that may be placed on parental actions. Such distinctions are often imagined to be asocial facts, there for the judge to discover. We challenge this view, however, by examining the controversial case of B and G [2015]. In this case, Sir James Munby stated that the cutting of both male and female children’s genitals for non-therapeutic reasons constituted ‘significant harm’ for the purposes of the Children Act 1989. He went on to conclude, however, that while it can never be reasonable parenting to inflict any form of non-therapeutic genital cutting on a female child, such cutting on male children was currently tolerated. We argue that the distinctions between religion/culture and therapeutic/non-therapeutic upon which Munby LJ relied in making this judgement cannot in fact ground categorically differential legal treatment of female and male children. We analyse these distinctions from a systems theoretical perspective—specifically with reference to local paradoxes—to call into question the current legal position. Our analysis suggests that conventional distinctions drawn between religion/culture and the therapeutic/non-therapeutic in other legal contexts require much greater scrutiny than they are usually afforded.

How Far is Too Far? Theorising Non-Conviction-Based Asset Forfeiture

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcements armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory’s unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

Building New Traditions: Drawing Insights from Interactive Legal Culture

Within the legal academy in the United States, there is general agreement that the US legal order does not deliver justice for Indigenous peoples. Criticisms in this regard are plentiful and varied, ranging from charges of colonialism, racism, patriarchy, and entrenched hegemony to an over-reliance on adversarial structures and processes (Getches 2001–02). It is notable, however, that while these discussions may reference tribal custom and tradition, they tend not to do so in the context of the existing body of literature regarding legal pluralism. Indeed, these discussions usually omit any recognition that the legal orders of the United States and its Native nations exist in circumstances of legal plurality, by which we mean the situation whereby competences and responsibilities are divided across federal, state, and tribal courts, with the ultimate goal of giving effect to local and culturally specific normative practices within what is still a fundamentally centralised legal system. Indeed, this situation is paradigmatic of John Griffiths’ definition of legal pluralism as ‘the messy compromise [that] the ideology of legal centralism feels itself obliged to make with recalcitrant social reality’ (Griffiths 1986, p. 7). It is further worth noticing that, while this ‘compromise’ situation is prima facie successful in its operation, not only are tribal jurisdiction and authority both tightly bounded (National Farmers Union Ins. Cos. v Crow Tribe 1985) but that by declaring that the existence and extent of tribal jurisdiction is a federal question, the US Supreme Court has anointed itself as the ultimate arbiter on any dispute arising from Indian Country (18 U.S.C. 1151).