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The (In)efficiency and (Un)certainty of Non-propositional Structures of Reality … or, Adventures in Philosophy of Understanding
Full text linkThis article critically discusses understanding, certainty and efficiency in relation to juridical and jurisprudential contexts. Understanding is an undertheorized topic in law and jurisprudence, despite philosophy and epistemology addressing it at some length in recent years. The focus, therefore, is on understanding-in-law (or understanding as a cognitive function of the law) rather than understanding-of-law, which is an exceedingly well-trodden path in doctrinal, critical and philosophical legal work. The article acknowledges that this branch of epistemology is perhaps new ground for legal academics, and thanks to Luca Siliquini-Cinelli’s landmark book, Scientia Iuris, the article is a response to his thesis that law’s regulatory function has grown in recent decades to embrace and embody knowledge while voiding experience. And while this leads Siliquini-Cinelli to the conclusion that law is a matter only of knowledge, not of experience, the article raises questions about what dwells cognitively between poles of knowledge and experience, and how we can take from or define a place for understanding between poles of knowledge and experience. It also explores the role of certainty and efficiency in shaping understanding in law and beyond, with understanding ultimately defined as a grasping of the structures of the objects of law, different from and in contrast to legal knowledge.
Keywords: understanding; certainty; knowledge; efficiency; law
Arbitration and Mediation in Nineteenth-Century England by Francis Calvert Boorman and Rhiannon Markless
Full text linkChildren in Family Mediation: A Rights Approach or the Right Approach?
Full text linkThis article explores the impact of three interlinked developments on both theoretical understanding of the specific role of children in family mediation and on its professional practice implications. First, the adoption of an imported terminology deviates from the clarity and precision of existing policy in respect of the nature and purpose of professional intervention in relation to children in mediation; second, current high standards of practice risk being compromised by an overemphasis of a rights approach to determining a child’s direct participation in mediation; and third, how a failure to sufficiently recognize the impact on families of multiple harsh pressures, including poverty and deprivation, at a time of conflict and stress, risks both overstating the scope of mediation for meeting a child’s needs as well as underplaying the complexities involved in relation to the direct participation of children in mediation. The article explores the tensions arising from these developments and the challenges, theoretical and professional, involved in protecting the ethical and professional principles of mediation while ensuring that the voice of the child can be heard in the process.
Keywords: ADR; mediation; family mediation; children in mediation; children’s rights
Safeguarding? Critiquing Gender-Critical Discourse around Gender Diversity at School
Full text linkMore and more young people are identifying their gender in different ways, and gender diversity at school has become an increasingly debated topic. Within the United Kingdom (UK), sociopolitical discourse has become progressively fractured, with the UK Government recently releasing controversial draft non-statutory guidance prohibiting social transitioning, or the changing of names, pronouns and/or appearance amongst gender-diverse individuals at school. One term which has been increasingly utilized in this discourse is “safeguarding”, a term which refers to the practice of promoting child welfare and protecting children from harm. Safeguarding is a key consideration when discussing gender inclusion at school. However, harmful and discriminatory policies, such as “outing” gender-questioning children to their parents, are now being mislabelled as safeguarding practices. This article will argue that the concept of safeguarding, and wider discourses around child vulnerability, are being misappropriated in order to justify anti-trans policies. This article will explore the current UK discourse around gender-diverse children at school, demonstrating that gender-diverse youth are perceived as both vulnerable to “gender ideology” and a threat to others at school, a social positioning that serves to restrict their rights and agency. This article will discuss the ways in which the term safeguarding is being weaponized against gender-diverse children, before reviewing the social scientific research on risk and protective factors for gender-diverse youth, to understand what safeguarding gender-diverse children actually means.
Keywords: gender diversity; trans; school; cisgenderism; safeguarding; childhood
Rights of the Child or Parental Authority in Children’s Medical Treatment Cases?
Full text linkRecent cases concerned with the future medical treatment of a child with a life-limiting condition have presented, on appeal, the argument that the threshold for intervention in a parental decision about the child’s medical treatment should be significant harm rather than best interests. The basis of the claim is that parents know their child best and, consequently, should have the right or authority to make decisions about their child’s future. Although unsuccessful before the courts, these legal arguments have inspired the inclusion of provisions in Bills before Parliament aimed at enhancing parental authority in such cases. This article examines this modern reincarnation of the claim to parental authority, in the context of the medical treatment of a seriously ill child. It argues that reform of the law to re-assert parental authority would be a seriously retrograde development—a contemporary conservative reformulation of the child as object—which would significantly erode the rights of the child. Rather, it is argued that the child should be at the centre of the shared care of parents and professionals focused upon the individual child’s needs, interests and rights. This article concludes with a fictional account of an attempt to reform the law to place the interests, rights and voice of the child at the centre of determination of their future medical treatment.
Keywords: children’s interests, rights and voice; parental authority; children’s medical treatment; best interests or significant harm threshold
Is There a Right to Newsgathering in Hong Kong? Putting the CFA Judgment of Choy Yuk Ling in Context
Full text linkIn Hong Kong, the Court of Final Appeal in HKSAR v Choy Yuk Ling (CFA 2023) quashed the convictions of a journalist who was accused of knowingly making false statements in her search requests of a government-maintained vehicles register containing personal data crucial to newsgathering. The Court held that the relevant search purposes should not be narrowly construed to exclude bona fide journalism; regard has to be given to freedom of speech and of the press; and data protection law permits disclosures of personal data in the public interest for news activity purposes. However, this decision was soon overturned by the Government’s new measures which in effect prevent any search of the register for journalistic purposes. In early 2024, the enactment of the Safeguarding National Security Ordinance by the Government has further eroded the right to newsgathering of Hong Kong journalists.
Keywords: Hong Kong; Court of Final Appeal; newsgathering; freedom of speech and of the press; protection of personal data; Safeguarding National Security Ordinance 2024