Cyrille Fijnaut: a pioneer from the low countries

ABSTRACT

Inspired by American pioneers in the field of police research like Jerome Skolnick, Cyrille Fijnaut resigned in 1969 as a police lieutenant from the police force in the city of Tilburg, the Netherlands in order to create the opportunity to study criminology and philosophy at the KU Leuven in Belgium. At the same university, he wrote in the years 1974–1978 his Ph.D. dissertation on the political history of policing in Europe since the Napoleonic Era. This thesis became the starting point of a rich career as a professor of criminology and criminal law at the Erasmus University Rotterdam, the KU Leuven, Tilburg University and NYU Law School (Global Law School Programme). Over the years, he became an internationally renowned expert in the fields of police and judicial cooperation, organized crime and terrorism, and the transatlantic history of criminology and the criminal justice system. In these and other fields he wrote some 50 books and edited some 50 volumes, and published more than 400 articles in academic and professional journals. In addition, he was one of the founding fathers of the Belgian journal of criminology and criminal law Panopticon and the European Journal of Crime, Criminal Law and Criminal Justice. He also served as an expert in some of Dutch and Belgian committees of inquiry, e.g. the committee that investigated the safety and security problems of Pim Fortuyn, the Dutch politician who was killed in May 2002. The Dutch government rewarded him with a Knighthood in the Order of the Dutch Lion, and the Belgian government appointed him Commandeur in the Crown Order.     

Freedom, Property and Equality in the Theory of `Fundamental Rights'. A Commentary on an Essay by Luigi Ferrajoli

The essay that Luigi Ferrajoli published inTeoria politica is a partial, althoughvery important, preview of an importanttheoretical work on which he has been labouringfor several years. Ferrajoli is knownto be aiming at achieving a rigorousformalisation of the theory of subjectiverights, an undertaking to which he first turnedhis hand at the beginning of the seventies,with the book Teoria assiomatizzata deldiritto, in which he laid the foundations forhis subsequent work, including his extensivetreatise of the theory of criminal law,Diritto e ragione.So it is quite natural that this new essaycontains a quantity of references to conceptualcategories that come together in a veritableWeltanschauung, as it used to be called at onetime, in addition to an epistemology and ageneral theory of law.In order to discuss all his theses in thisessay as seriously as they deserve, we reallyshould go back to that set of philosophicalpremises to which they refer – and whichFerrajoli tends to nurture in a sort oftheoretical latency – and try to focus on anddiscuss them. As this is not the place for such amassive task – for which I may not even havethe necessary competence – I shall restrictmyself to touching on just a few points thatconcern me more closely. I apologise for thisselective and thus not very systematicapproach, made necessary to some extent also bythe large numbers of theoretical and politicalquestions that Ferrajoli's essay tackles,raises or merely touches on. Nevertheless, myselection will be aided by the criticalsignificance that Ferrajoli dedicates to someof my opinions. In short, I shall not try to doany more than to respond indirectly to hiscriticisms. And I shall do so with the greatestof respect, as Ferrajoli well knows, for histheoretical work and for the profoundmotivations that inspire him.     

Private prosecution in Singapore: understanding locus standi and measures in place to minimise abuse

In Singapore, as is the case with other commonwealth countries, the general rule is that once any offence has been committed, it is for the state to prosecute the alleged offender. This explains why Article 35(8) of the Constitution provides that ‘[t]he Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence’. Article 35(8) is reinforced by section 11 of the Criminal Procedure Code, which provides that ‘[t]he Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code or any other written law’. However, as is the case with other commonwealth countries, the public prosecutor in Singapore does not have an exclusive right to prosecute. In some circumstances other government agencies or private individuals may institute and have instituted prosecutions. The purpose of this article is to discuss the issues of locus standi to institute a private prosecution and the measures in place in Singapore to minimise abusing the right to institute a private prosecution. In discussing these issues, the author, where necessary, compares the Singapore position with that of other commonwealth jurisdictions and makes recommendations on how legislation could be amended in Singapore to address some of the challenges.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

OFFENDER REACTlON, PROFESSIONAL OPINION, AND SENTENCING

The central issue of this study involves determining whether the deviant is merely a passive recipient of a deviant label or if he is able to actively influence the labeling process. It is found that sex offenders who admit at least some involvement in deviant sexual activities stand a greater chance of being recommended for probation than these who deny involvement, but only if the offense does not contain certain features, e.g., force or pregnancy of the victim, which would normally preclude considering probation. The criminal justice system contains within it some means for allowing offenders to negotiate some of the consequences of conviction.     

On the Relation between Form and Substance in Law

Abstract. In this paper the author deals with some theoretical aspects of Robert Summers' last book ( Summers 2006 ). In particular, he concentrates on the hazy relationship between form and substance in Summers' theory. In order to analyze some major difficulties entailed in the thesis that form and substance are different and independent things, the author discusses three specific questions: (1) the difference between form and substance; (2) the possibility of a form meant to be value‐neutral; (3) how to distinguish a form‐centered approach from a formalistic approach when one has to interpret a statute. This last question is dealt with through examples taken from two legal decisions. * * Abstract by Marco Goldoni.
     

Development of the Nationality Law of China

With the deepening of globalization, many provisions in the Nationality Law of China promulgated in 1980 are already out of time and some provisions are easy to trigger dual nationalities. Consequently, while sticking to the basic principle of the Nationality Law, certain provisions of the Nationality Law of China should be gradually improved according to the present situation of international and domestic development, and the implementing guidelines for the Nationality Law should be introduced to construct a relatively complete legal system to adjust and regulate various relationships of nationality. Song Xixiang, majoring in international law, Hong Kong and Macao law, is a professor of law and the dean of Law School of Shanghai International Studies University. Now, he is also a doctoral candidate of Wuhan University. Meanwhile, Prof. Song is an executive director of the China Society of Private International Law and of the China Society of International Law and of the China Society of International Economical Law, etc. Moreover, he is a vice chairman of Hong Kong and Macao and Taiwan Law Association.     

Legitimate Political Authority and the Duty of Those Subject to It: A Critique of Edmundson

According to William Edmundson, a legitimatepolitical authority is one that claims tocreate in its subjects a general duty ofobedience to the law, and that succeeds increating in its subjects a duty to obey stateofficials when they apply the law in particularcases. His argument that legitimate politicalauthority does not require the state's claim tobe true rests on his analysis of legitimatetheoretical authority, and the assumption thattheoretical and practical authority are thesame in the relevant respects, both of whichare challenged here. In addition, Edmundsonfails to demonstrate that a general,content-independent, duty to obey officials whoadminister the law avoids the criticismsphilosophical anarchists pose to a general,content-independent duty to obey the law. Finally, Edmundson requires a legitimate stateto sincerely claim to create a generalduty to obey the law, yet he also argues thatin some cases the state ought to make literallyfalse claims regarding the particular dutiesincumbent upon its subjects. DespiteEdmundson's recent efforts to reconcile thesetwo claims, the conflict remains.     

PUBLIC OPINION AND PENAL POLICY

This article discusses the issue of who should run the penal system 7he major assumption of penal administrators has been that the public was in favor of a punishment policy. This research indicates that the public is not as punishment-oriented as expected, though older respondents gave greater approval to restrictive conjugal visitation policies. Age variations may indicate a change in public opinion. The evidence also indicates that the public is more willing to support such programs as conjugal visits and work release than was previously thought. A willingness for more favorable treatment of inmates was found for those who had some contact with inmates.     

The morality of law and economics

The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory.     

Hegel and Hobbes on Institutions and Collective Actions

Abstract. Georg Wilhelm Friedrich Hegel is usually, and rightly, considered the foremost representative of the organistic conception of society. It is only natural to think that his view has nothing in common with the kind of individualistic outlook that dominates our legal and political thinking, and that I myself have tried to defend. I try to show why certain insights of Hegel are potentially important even for individualistic legal and political theories. First, I explicate some of the problems he struggled with, and compare his views with those of Thomas Hobbes. Next, I try to link his views to the modern theories of institutions and of collective action. The antidemocratic ideology expressed in the main works of Hobbes and Hegel is clearly outmoded. Nevertheless, in their criticism of popular sovereignty, they posed some important questions. First, how do collectives like the People exist? Second, what do we mean by saying that collectives perform actions? It seems that, in order to perform an action, an entity ought to possess will. But what does it mean that a collective has a will?     

Mega/City/Crime: Notes on the Cultural Significance of Reggio’s Koyaanisqatsi (1982)

In his “non-narrative” film Koyaanisqatsi (Hopi for ‘life in imbalance’) Godfrey Reggio documents the ecologically disastrous ‘imbalanced’ life in modern, industrialised mega-cities. In the film, he seems to mourn the loss of what he suggests was a more ‘balanced’ form of life, when Man was one with nature. This contribution draws on elements in Hopi culture and reads Reggio’s iconic film as part of a cultural trend in which submission, in all its guises, is no longer accepted. In this cultural trend submission always is submission to code (that is: to a certain structured solidity or ordered coherence), and therefore, to wasteful destruction and to ‘life in imbalance’. This trend has, however, in the course of the decades, also spawned a void of “Luciferian” desires of absolute sovereignty, and has done this to such an extent as to undermine the conditions of possibility for anything like a non-submissive life ‘in balance’ to endure.

     

Valuations – or How to Say the Unsayable

In this paper, the author revisits "the emotive theory of value" and argues that values are not entities but nothing other than "linguistic fictions". Accordingly, valuations—i.e., valuing actions—can be defined as approving or disapproving attitudes of a subject to some object. In this perspective, values cannot be true or false: What we can do is just compare them with regard to strength. As a consequence, value judgments are to be understood as sentences which are used either to say that a subject s values an object o positively or negatively, or to express (evince) a valuation. The author then shows some relations between normative and evaluative discourses. First, he claims that norms as well as valuations are not true or false. Second, he argues that both may be explained or justified, even if the former are usually justified teleologically whereas the latter are explained referring back to the subject's background and life-style. Third, he notes that a legal order originates from the fact that valuations "crystallize" into norms. Finally, the author examines some further questions related to his analysis. In particular, he argues that the different realms of values, e.g., morals, aesthetics, politics, etc., do not correspond to different evaluative attitudes, but to different phenomena and diverse spheres of human life.     

Foreword: Applied ethics in criminal justice

Abstract

In The Problem of Punishment, David Boonin offers an analysis of punishment and an account of what he sees as ethically problematic about it. In this essay I make three points. First, pace Boonin's analysis, everyday examples of punishment show that it sometimes isn't harmful, but merely “discomforting.” Second, intentionally “discomforting” offenders isn't uniquely problematic, given that we have cases of non-punitive intentional discomforture—and perhaps even harmful discomforture—that seem unobjectionable. Third, a notable fact about both non-harmful punishment and non-punitive intentional discomforture is that they aim at improving the subject. This suggests that, if the prima facie wrongness of intentionally harming another person is the fundamental challenge for punishment, the “educative defense” is the royal road to justifying the practice. I conclude by outlining one version of the educative defense that exploits this advantage while avoiding some traditional objections to the approach.     

In Defense of Kant’s League of States

This article presents a defense of Kant’s idea of a league of states. Kant’s proposal that rightful or just international relations can be achieved within the framework of such a league is often criticized for being at odds with his overall theory. In view of the analogy he draws between an interpersonal and an international state of nature, it is often argued that he should have opted for the idea of a state of states. Agreeing with this standard criticism that a league of states cannot establish the institutional framework for international justice, others also suggest an alternative stage model interpretation. According to this interpretation, Kant’s true ideal is in fact a state of states, whereas the league is merely introduced as a temporary and second best solution. In contrast to both the standard criticism and the stage model interpretation, I argue that fundamental normative concerns count in favour of a league rather than a state of states. I also argue that Kant’s defense of such a league is consistent with his position on the institutional preconditions for just interaction in the domestic case because of crucial relevant differences between the state of nature among individuals and the external relations between states.     

Richall Holdings v Fitzwilliam: Malory v Cheshire Homes and the LRA 2002

Richall Holdings v Fitzwilliam, holds that Malory v Cheshire Homes is binding in relation to the Land Registration Act 2002. Newey J saw himself as bound by that decision because he could find no relevant distinction between the provisions of the Land Registration Act 1925, and the Land Registration Act 2002. There are however significant differences in the general system of registration that is established. In particular the different roles of section 20 LRA 1925, and section 29 LRA 2002 mean that Malory was not binding and indeed ought not to have been followed. In addition, the treatment of the priorities rules in Richall misinterprets section 29 LRA 2002. Finally, the decision by‐passes the rectification and indemnity provisions of schedules 4 and 8. The decision ought to be overruled.     

Professor Waldron Goes to Washington

In Torture, Terror and Trade-Offs: Philosophy for the White House Jeremy Waldron asks how moral philosophy can illuminate real life political problems. He argues that moral philosophers should remind politicians of the importance of adhering to moral principle, and he also argues that some moral principles are absolute and exceptionless. Thus, he is very critical of those philosophers who, post 9/11, were willing to condone the use of torture. In this article I discuss and criticize Waldron’s absolutism. In particular, I claim that the arguments he offers in support of it are either dependent on religious conviction or support only rule utilitarianism, not absolutism. Additionally, I argue that the character of politics is such that it is both undesirable and morally irresponsible for politicians to adopt the absolutist approach favoured by Waldron. We have reason to be glad that Professor Waldron does not go to Washington.     

Commentators on the Cārvākasūtra: A Critical Survey

In spite of the fact that the mūla-text of the Cārvākasūtra is lost, we have some 30 fragments of the commentaries written by no fewer than four commentators, namely, Kambalāśvatara, Purandara, Aviddhakarṇa, and Udbhaṭa. The existence of other commentators too has been suggested, of whom only one name is mentioned: Bhāvivikta. Unfortunately no extract from his work is quoted anywhere. The position of the Cārvākas was nearer the Buddhists (who admitted both perception and inference) than any other philosophical system. But in order to brand the Cārvākas as pramāṇaikavādins they were made to appear as one with Bhartṛhari. Even though the commentators of the Cārvākasūtra had some differences among themselves concerning the interpretation of some aphorisms, they seem to have been unanimous in regard to the number of pramāṇas to be admitted. It was perception and inference based on perception. Only in this sense they were pramāṇaikavādins. Unlike other systems of philosophy, the Cārvāka/Lokāyata did not accord equal value to perception and inference. Inference, they said, must be grounded on perception first, so it was of secondary kind (gauṇa). From the available evidence it is clear that the commentators were unanimous in one point, namely, primacy of perception which includes admittance of such laukika inference as is preceded and hence can be tested by repeated observations. In this respect both Aviddkarṇa and Udbhaṭa were in agreement with Purandara. Bhaṭṭodbhaṭa or Udbhaṭabhaṭṭa was known as a commentator who differed from the traditional Cārvākas and broke new grounds in explaining some of the aphorisms. His commentary is creative in its own way but at the same time unreliable in reconstructing the original Cārvāka position. Udbhaṭa seems to have digressed from the original, monist materialist position by taking a dualist position concerning the body-consciousness relation. Moreover, he seems to verge on the idealist side in his explication of an aphorism. In this sense he was a reformist or revisionist. Aviddhakarṇa, like Udbhaṭa, attempted to interpret the Cārvāka aphorisms from the Nyāya-Vaiśeṣika point of view, perhaps without being converted to the Cārvāka. Since it is not possible at the present state of our knowledge to determine whether they were Cārvākas converted to Nyāya or Naiyāyikas converted to Lokāyata, the suggestion that they simply adopted the Cārvāka position while writing their commentaries without being converted to the Cārvāka, may be taken as a third alternative. In spite of the meagre material available, it is evident that (1) not unlike the other systems, there is a lack of uniformity in the commentary tradition of the Cārvākasūtra, (2) not all commentators were committed monistic materialists; at least one, namely, Udbhaṭa, was a dualist, and (3) in course of time Nyāya-Vaiśeṣika terminology, such as gamya, gamaka, etc., quite foreign to the traditional Cārvāka, has been introduced into the Cārvāka system.     

Application Discourse and the Special Case-Thesis*

Abstract. Klaus Günther's (1988) book developed the distinction between two kinds of discourse, the foundation discourse and the application discourse. In an article (Günther 1989a) following the publication of the book, he used this basic distinction as the starting point for a criticism of the special case-thesis as defended by Robert Alexy (1978, 32ff., 263ff.; Alexy 1989, 16ff., 213ff.). The aim of this article is to criticize this criticism in its turn and to show that the special case-thesis does not need the reformulation which Günther proposes. It should be clear from the outset that this concerns an internal discussion in the field of discourse theory; certain discourse-theoretical premises are taken for granted. In order to understand Giinther's criticism I will first give a brief account of the distinction he has made.