Law in Motion: 50 Years of Legal Change

This book is a celebration of 50 Years of The Open University written by members of The Open University Law School. We are pleased to offer it open access and free to download as a complete book or individual chapters.

Dedicated to Gary Slapper

Part I: Opening thoughts

Chapter 1 Open and Shut Cases – Simon Lee

Part II: Thoughts on the four nations and beyond

Chapter 2 Devolution, debate and change: Changing the UK’s constitutional settlements – Carol Howells and Edwin Parks

Chapter 3 50 Years of Arguing with the Neighbours – Anne Wesemann

Chapter 4 From the Greek case to the present: 50 years of Article 3 of the European
Convention on Human Rights – Neil Graffin

Chapter 5 The Triumph of International Law – Marjan Ajevski

Part III:  How we see the law

Chapter 6 Desire Lines – Robert Herian

Chapter 7 Ownership rhetoric and the question of belonging – Matt Howard

Chapter 8 How much do you need to know? – Lisa Claydon

Chapter 9 Consenting to Sexual Activity – Caroline Derry

Part IV: Beyond the Courtroom

Chapter 10 The Jurisprudence of Mediation – Julian Sidoli

Chapter 11 Gender identity and prisons in England and Wales:
The development of rights and rules; checks and balances – Keren Lloyd Bright

Chapter 13 Lockdown, Law & the Whirligig of Jurisprudence: The Return of a Realist –
David Dennis and Simon Lee

Part V: Concluding thoughts

Chapter 14 50 years of Clinical Legal Education: Looking Back to the Future – Liz Hardie, Hugh McFaul and Francine Ryan

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Call for papers: Legal history, literature and the arts

26 May 2023, IALS, London

Call for papers

Hosted by the Open University Law School’s legal history research cluster, this one-day event will explore legal history through art, architecture and literature. It is deliberately broad in scope to allow connections and fresh approaches to be developed. We welcome presentations in a variety of formats including 20-minute papers and workshops, and from academics at all career stages including postgraduate researchers.

Attendance at the conference will be free of charge.

Subjects may include but are not limited to:

  • Legal history and genre literature (science fiction, crime fiction, romance, etc)
  • Legal history and drama
  • Art, artists and legal history
  • Contested heritage
  • Legal architecture
  • Exploring and communicating legal history through art
  • Comparative, transnational and international approaches

Submitting a proposal

Proposals should be submitted to by Friday 28 April 2023 in the following formats:

Papers: an abstract of not more than 250 words

Panels: a summary of the panel topic and rationale, with an abstract for each paper of no more than 200 words

Workshops and other formats: an outline of not more than 500 words, including suggested length and any facilities required

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Call for papers – Diversity, dilemmas and discoveries: Legal history in the curriculum

Diversity, dilemmas and discoveries: Legal history in the curriculum

Online event
15 December 2022
The Open University Law School
Legal History Research Cluster

Call for papers

What is the place and purpose of legal history in the wider law school curriculum? Research in the field increasingly engages with socio-legal approaches, histories of oppression and discrimination, and critical perspectives on the role of law. As law schools seek to diversify, liberate and decolonise the curriculum, legal history can and should play a vital role.
This online conference will explore how legal history contributes to the curriculum of the modern law school. We invite proposals for 15-minute papers on any aspect, and particularly welcome those which address the central theme of diversity, dilemmas and discoveries.
Abstracts (not exceeding 300 words) should be submitted by email to by Friday 11 November 2022.

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Call for Papers: The Liability Convention in the ‘New Space’ Age

50th Anniversary of the Liability Convention

Debris plot by NASA

The Liability Convention (Convention on International Liability for Damage Caused by Space Objects) turns 50 in 2022. To mark the anniversary the Open University Law School’s Legal History Group will be holding a virtual conference on 29 April 2022.

In the 50 years since the Liability Convention opened for signature, human activities in outer space have transformed; the number of space objects has dramatically increased (and so has the debris); and commercial activities have multiplied and diversified. The last two decades have seen a continuous crewed presence aboard the International Space Station, and plans for commercial space stations and orbital construction platforms are under way, raising the question of whether and how has this increased the complexity of the chain of responsibility and attributability for wrongful acts under the Convention? As states and companies from the Global South are starting to enter the space economy, could the Liability Convention be a barrier for entry through increasing the risks and therefore costs of joint or shared launching endeavours? With plans of expanding activities on the Moon and other celestial bodies, what is the use of the Liability Convention beyond Earth’s orbit? Is there liability for contaminating the Outer Space environment for future space exploration, such as the search for signs of life in the solar system? These are just some of the changes that prompt the need to take a look back and a look forward and ask whether the liability regime for space objects is fit for purpose for the next fifty years.

Liability plays an important role in any legal regime, particularly involving commercial actors, but the Liability Convention remains relatively untested and what tests it has faced have proved inconclusive at best. However, this call looks beyond the Liability Convention and welcomes a wide range of papers focusing on questions of ‘liability’ and ‘state responsibility’ in outer space, at the international and national levels. We particularly welcome comparative law and legal history papers.

Key Themes (Not Exhaustive):

Liability and State Responsibility

Lability in the ‘commercial space age’

ASATs, ‘space warfare’ and the role of liability

Determining Fault in Space

Liability and space tourism

Liability as a barrier for entry

Please submit a maximum 300-word abstract to by 25 March 2022.

Please feel free to contact the organiser(s) at if you have any questions.

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Call for papers: Histories of legal education

Diversity, dilemmas and discoveries: Histories of legal education

Online event

The Open University Law School – Legal History Research Cluster

16 November 2021

Call for papers

Legal education is facing significant changes and challenges, from the effects of the Covid-19 pandemic to reviews and reforms of professional legal training and debates around the future of the legal professions. The core content and assumptions underpinning law degrees are being challenged by movements to decolonise and liberate our curricula. New technologies and changes to the professions mean that our students require different skills, while the growing proportion of law students who will never practise as lawyers pose fresh challenges and possibilities. This is therefore an opportune moment to consider how legal education has developed, and why.

This one-day online conference will explore histories of legal education in the common law world, as well as methodologies and approaches to researching them. We invite proposals for 15-minute papers on any aspect, and particularly welcome those which address the central theme of diversity, dilemmas and discoveries. Potential themes may include:

  • Legal education and the British empire
  • The legal education of women, working class, and ethnic minority students
  • Legal education beyond the law school
  • Legal education within the law school
  • Methodologies of legal education history.

Abstracts (not exceeding 300 words) should be submitted by email to by Friday 8 October.

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Celebrating a centenary for women in the law

To mark the centenary of Olive Clapham becoming the first woman to pass the English Bar Finals, the Law School’s legal history research cluster welcomed an international audience to Diversity, Dilemmas and Discoveries: Researching the history of women in the UK’s legal professions. The event recordings are now available as a YouTube playlist.

The opening session explored Olive Clapham’s life and significance, (also see below) with a unique opportunity to hear from her daughter Margaret Miles, who shared her memories and previously unseen pictures and documents. Caroline Derry then considered the importance of her achievements for women lawyers both past and present.

Building on themes raised in that session, two panels explored the rewards and challenges of writing feminist legal biographies, and professional identities beyond the white, male model. Carol Howells considered researching across the four nations of the UK, while Avis Whyte and Seema Kandelia discussed researching early ethnic minority women barristers. Judith Bourne, biographer of Helena Normanton, explored the relationship between biographer and subject. Using the lives of Elsie Bowerman and Chrystal Mamillan, Laura Noakes considered political activist lawyers; Carrie de Silva looked at early Sri Lankan women lawyers. The current situation for women in the legal profession was explored by Leona Samuda, speaking on Covid-19 and working from home.

Rosemary Auchmuty and Erika Rackley gave the closing plenary, on lessons from the Women’s Legal Landmarks Project: the interwar years.

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Judging Brexit – What Would Llewellyn and Hart say about Miller 2

In our ongoing Judging Brexit series, our Research Fellow, Marjan Ajevski, has a talk with David Dennis, a Lecturer at the Law School, on what the early Realists would say about the Miler 2. The inspiration for the chat was David’s blog post on the UK’s Constitutional Law Association website, but we take it a bit further here with questions of law-making by courts and what constrains them.

If you prefer to listen rather than watch the talk, you can head over to our sister podcast Research @ OU Law School on SoundCloud, or just follow the link below. Please leave a question or a comment if you wish to continue the conversation further.

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Judging Brexit – an ongoing series on things law and Brexit

The OU Law School is starting a series on Judging Brexit, where various academics from the Law School, and its sister faculty the Business School, have a conversation about all things legal and Brexit. Last week, Professor Simon Lee and Lecturer Simon Lavis had a chat about what the Supreme Court judgments mean for the UK’s constitutional arrangement, how to read Supreme Court judgments, and how referendums impact the constitutional settlement in the moment and over time.

These videos are primarily aimed at students of law but they are recorded with a broader audience in mind. They are there to inform and put recent events into the wider legal context. Brexit is a process; a process of re-shaping the law, of re-shaping politics, of re-shaping governance, and ultimately of re-shaping our identity as British, in our relation with the world and with each other.

And as a bonus, Prof. Simon Lee also has a chat with Dr Leslie Budd about some constitutional implications of Brexit and devolution.

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International Law at the Fulcrum

Marjan Ajevski, Research Fellow in Law


In early July, 22 countries, all from the West, sent a letter to the UN Commission on Human Rights condemning the treatment of the Uyghur minority at the hands of the Chinese government. They raised serious concern regarding China’s arbitrary imprisonment of as many as 1 million Uyghurs in what China calls re-education camps under the guise of combating extremism. A few days later, a letter released by 37 UN ambassadors defended China’s treatment of the Uyghur minorities. They commended China’s human rights record and excused China’s treatment of the Uyghurs, noting that terrorism and extremism has caused enormous damage to the region where Uyghurs live. This polite exchange of diplomatic language over the backs of a million interned Uyghurs is a microcosm of the dilemma that liberal democracies are facing in the current international system. Let me explain.

World Flag Map; Author: Mason Vank (CC, Attribution, ShareAlike)

In its classical account, the international system is a system of anarchy, having no central authority, including a central lawmaker. It is predicated on the assumption that equal and independent states create and implement legal norms and that International law regulates the relationship between states or groups of states. Hence the states create, interpret and apply international law at the same time. A classical map of the world would like like the picture above, populated with states that have clear(ish) borders between inside/outside.

In this account, international norms must be connected to the consent of the state in some manner for them to be valid norms: treaties are negotiated, signed and ratified by states, custom is consistent state practice back up by opinio juris – the belief that the practice reflects a legal requirement; general principles are legal principles found in the legal systems of most states. Moreover, it is not only that consent is needed for an international norm to be opposable to a state, when consent is absent, international law accommodates the non-consenting state. For example, a state cannot be deemed to be obligated by a treaty that it is not a party to, and, under the persistent objector rule, a state that consistently and clearly objects to the emergence of a new custom, can be exempt from that custom. Unfortunately, this account of how international law works is no longer valid.

Since the end of WWII, there have been two streams of thought pushing to shape the international system. One is the reactionary force, trying to bring to life or preserve the relevance of the classical account. The other is the force that can best be described as the reform movement, an intellectual and political force, present since the beginning of the international legal profession, that tries to improve the position of individuals through the international system. The movement (not really an organization but more of a mood, a way of thinking) not only created and developed mature branches of substantive law, like international human rights and international criminal law, but also changed the way that international law was created and implemented. By the end of the 20th Century, we were starting to talk about a system of global governance, but without a government.

Global Air and Sea Routes by Dominic Alves (CC BY 2.0))

The global governance system is not a simple system to pin down. It’s a system that allows for (hard and soft) norms created at the international level to pierce the bubble of sovereignty and be implemented without the traditional constitutional gatekeeping mechanisms to be triggered. States are no longer the only ones that are involved in creating these norms, non-state actors, primarily international organizations, but NGO’s and multinational companies also participate in this norm-making. In addition, rather than operating as solid billiard balls, states are better seen in a disaggregated manner, where the different levels of government (both vertical and horizontal) can directly connect with levels in other jurisdictions, including the international level, therefore piercing the veil of sovereignty.

This system has created clear benefits, after all we are the richest, healthiest, oldest and most interconnected generation in the history of humanity. Moreover, if we are to tackle global challenges, like climate change, we need effective global institutions and mechanisms for cooperation. Nevertheless, this system created a problem for well-functioning and emerging liberal democracies – their internal constitutional arrangements that were predicated on a system of separation of powers, and some form of checks and balances, suddenly found itself out of balance in favour of the executive, but other non-state actors as well (think giant multinational companies).

For the past decade we have been debating how to reform the international system so as to remedy the problems for well-functioning liberal democracies. I’ve written previously why I think these debates didn’t produce the desired result, but to make a long story short, I argued the debate took for granted that projecting democratic governance internationally was the generally accepted attitude and therefore, did not build a case for international democratic governance. We were having a debate about how to reform world governance, without establishing a case for why, other than it is what liberal democracies need in order to return balance their domestic constitutional orders. It was presented as fait accompli.

Figure 1: Freedom in the world 2018; Source: Freedomhouse

I wish it were so, but data from Freedomhouse show that liberal democracy has been in decline around the world for the last 13 years, and there is no reason to believe that illiberal and autocratic regimes will support changes to the global governance system that empowers pro-democratic constituencies at home.

Which brings us back to China’s treatment of the Uyghurs. What the ambassadorial squabble shows is that we may be too late to reform the world to suit liberal democracies. The balance has shifted. While China has surpassed the US and the EU as the world’s largest economy, it is still less than half of the combined economy of the OECD countries, and not likely to change any time soon. That in turn means that, on the whole, the current global order of governance without a government will continue – dragging along its legitimacy problems, since liberal democracies, who see the problems as bugs rather than a feature of the system, will not have the power to reform the world to their liking. Consequently, we are likely headed towards a mid to long term status quo in the global order where countries retreat in their respective blocks (EU, NAFTA, ASEAN, Eurasian Economic Union) protecting their internal constitutional settlements.

Figure 2: Global status by population; Source: Freedomhouse

Figure 3: 12 years of decline; Source: Freedomhouse

It will be different from the post Second World War balance of powers world between two powerful blocks, since the powerful actors will still have substantial interconnectedness, mostly in free trade, finance, migration and tackling human made climate change. There will be much greater openness between nations than there ever has been in human history, but it will not be on liberal democratic terms. There is also  the possibility of greater regionalisation of political and economic life. Sadly, Fukuyama’s prediction of a future world order populated with liberal democracies will not come to pass, for while there might not be a great ideological struggle of what is the best political/economic order for humanity (the way that it dominated the Cold War era), there will be a struggle in liberal democracies of what is the best political/constitutional order for us as a people, as a country or a region.


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Desire Lines

Dr Robert Herian

Senior Lecturer in Law, The Open University*


 In human effort, the only source of energy is desire.  It is not in a person’s nature to desire what he already has.  Desire is a tendency, the start of a movement towards something, towards a point from which one is absent[1].

As “informal” pathways, desire lines offer alternatives to existing ways within normative and usually highly planned spaces such as housing estates, town centres, or public parks.  The distinction may seem straightforward, but it is important to understand, precisely, what makes a pathway either “formal” or “informal”.  Two obvious examples of formal pathways, both of which are defined by the Highways Act 1980 are footways (pavements or sidewalks) and footpaths[2].

Figures 1 & 2: Footpath and Footway; Images by Robert Herian

Of the two it might be argued that public footpaths, especially in the countryside, seem less planned than their asphalt counterparts, pavements.  Yet, both demonstrate human ingenuity in planning routes and journeys that inscribe the physical landscape, while creating rights of way that describe legal character within the landscape.  For good or ill, and like writing on a page, pathways tell stories of movement through traces that begin tentatively (informally) but inevitably become fixed and formal.  The formalization of pathways is described in law by the establishment of rights of way, usually ‘a period of use of 20 years from the point the use of the path is brought into question[3].

Figure 3: Enjoy the land! Image by Robert Herian

Establishing and importantly also formally recording rights of way, on an Ordnance Survey map for example, has long been important to ramblers and those who enjoy walking in the countryside.  Accurate knowledge of rights of way opens the countryside for exploration.  It would be too much of a distraction to talk in-depth here about property law.  But, worth briefly noting is that, whilst “property” is commonly thought of as a physical thing such as a car or a piece of land, the law regards it instead as a bundle of rights.   Among these rights is the right to exclude, which, in the context of land, means the right to stop people from entering (trespassing) or crossing privately owned land.  One of the reasons a right of way is significant, therefore, is because it represents a compromise between owners and non-owners within the context of a broader private property regime.  While the right to exclude absolutely might be preferable economically (it can secure and maintain land value for example, e.g. in cases of so-called “land-banking”), from the point of view of social and what we might also call spatial justice, including giving people a reasonable opportunity to explore and enjoy their environment, rights of way are an precious if limited sharing of space.

Figure 4: Disciplining movement; Image by Lucy Atherton

Wherever we turn in towns, cities and the countryside, we must negotiate planned spaces that, even when they might be thought of as “public” like a canal path for example, are in fact shaped by private ownership and the rights that ownership entail.  Formal pathways are just one example of how movement is governed and disciplined by planning rules and norms overseen by private property law and a variety of other regulations.  Signs and defensive architecture, like the barriers and fences in figure 4, in conjunction with pathways, channel movement and ensure walkers and other users of the pathways stay on the right path, so to speak.  Formal paths, in this sense, are thick with metaphor but, more importantly, reflect contemporary bureaucratic concerns to manage demands for efficiency and mitigate risk.  The aim is to ensure individual and collective movement that is controlled and predictable as far as possible.  Whilst the likelihood of injury or death to occur if the mix between cars and pedestrians is not planned for or managed properly suggests some bureaucracy is a good thing, the notion that one is not fully in control of where or how one moves through the landscape (the essence of being governed and disciplined) is more jarring to our sense of self.  For Michel Foucault, for example, the governance and discipline of movement is one element that produces ‘docile bodies’[4].

Figure 5: The “Official Route”; Image by Robert Herian

It is often useful to be told which way to go.  A well-worn path and clear signs that point the way make life easier, require less self-planning or initiative, and tend to make the experience of a journey less stressful.  Indeed, many of us probably accepted long ago, without even really noticing, a degree of complacency towards planned space that makes us easily annoyed when we lose the path.  Re-tracing your steps is time consuming and can take you in the wrong direction after all.  Through a bureaucratic lens, losing the pathway has a negative impact on efficiency, so more planning must be required.

Figure 6: The Efficient Route; Image by Robert Herian

Leaving the beaten track may be romantic or fill us with a gratifying sense of mischief. As alternatives to the norm, desire lines are manifestations of a type of rejection of formality and thus also an attempt to reject the discipline that accompanies it.  Yet we all eventually fall back into line, return to the paths we are supposed to be on, don’t we?  Desire lines exist only to bring points of formality closer together, not to undo or destroy formality, or postpone it indefinitely.  When we stop to think about this of course, the very idea of leaving the beaten track, romantic or not, means nothing without having a beaten track to begin with.

Distinctions between formal and informal pathways are clearly made in law (and elsewhere). But what is formal is always already (in)formal.  Informality breeds formality, and informal ways, in turn, are re-found in formal, planned spaces.  All pathways intertwine to produce what Michel de Certeau calls ‘a rhetoric of walking’[5].  Desire lines today are poetics of longing in bureaucracy, maps of productivity and efficiency, configurations of advancing and overbearing economic motion that no fence can stop.

Figure 7: Avanti! Image by Lucy Atherton


Rob and Lucy would also like to share a video with you that was shown as part of the Tate Modern’s Desire Lines exhibition. Hope you enjoy!

The desire lines project was started in November 2018 by Dr Robert Herian, senior lecturer in law at The Open University, with artist Lucy Atherton. The aim was to explore desire lines as indicators of cultural, political, economic, legal and social change through patterns of movement, as well as aesthetic and psycho-geographical phenomena.

The following presentation by Robert Herian and Lucy Atherton was recorded on 23rd may 2019 at Tate Modern, as part of the Tate Exchange programme. The presentation focused on one particular site: the immediate area surrounding the old Dema Glass factory in Chesterfield, Derbyshire. It incorporates local council planning documentation, bureaucratic theory, personal accounts and storytelling alongside photography, music and film, all of which provide different and critical perspectives on the informal pathways known as desire lines.

Finally, Rob recorded an episode on RUYA MAPS, an art platform with a global programme working with artists originating from areas affected by instability and conflict. Please have a listen to the episode:

Video presentation references:

Derbyshire County Council Mapping Portal; (accessed 12 August 2019)

National Library of Scotland: Map Images; (accessed 12 August 2019)

Walking (Towns and Cities). HC Deb 24 January 2002 vol 378 cc315-56WH; (accessed 12 August 2019)

Ankowitsch, Christian. 2010. Trails (Trampling paths), 14 August. (accessed 12 August 2019)

Bahbouh, Kinan, James R. Wagner, Catherine Morency, Chantal Berdier. 2017. Travel demand corridors: Modelling approach and relevance in the planning process. Journal of Transport Geography, Volume 58, pp.196-208

Blau, Peter M. 1956. Bureaucracy in Modern Society. New York: Random House

Branson, Adam. 2011. In the Mix. Planning, Issue 1920 (Oct 21), pp.18-19

De Certeau, Michel. 1984. The Practice of Everyday Life. Translated by Steven Rendall. Berkeley: University of California Press

Hayden, Mike. 2013. Regeneration in Chesterfield: Construction Forum , January 2013.  (accessed 12 August 2019)

Weil, Simone. 2005. An Anthology. London: Penguin

* This blog is part of the project, Desire Lines, by Dr Robert Herian and the artist Lucy Atherton.  Don’t forget to see more of Lucy’s work.


[1] Simone Weil. 2005. Prerequisite to Dignity in Labour. An Anthology. Edited by Siân Miles. London: Penguin Classics, p.265

[2] Highways Act 1980 s 329(1): “footpath” means a highway over which the public have a right of way on foot only, not being a footway; “footway” means a way comprised in a highway which also comprises a carriageway, being a way over which the public have a right of way on foot only.

[3] Emma Downing. 2011. Establishing in a Right of Way. House of Commons Library. Available at:  (accessed 13 May 2019)

[4] Michel Foucault. 1991. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. London: Penguin, p.164

[5] Michel de Certeau. 1984. The Practice of Everyday Life. Translated by Steven Rendall. Berkeley: University of California Press, p.99

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