Two Mistakes about the Concept of Punishment

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.     

Redrawing the Boundaries of Self-Defence

Suzanne Uniacke, Permissible Killing: The Self-Defence Justification for Homicide , Cambridge: Cambridge University Press, 1994, ix + 244 pp, hb £35.00.     

探讨急性酒精中毒者的刑事责任能力

我国刑法第18条第四款规定"醉酒的人犯罪,应当负刑事责任。"自从上世纪80年代末期复杂性醉酒的类型从日本引进中国后,司法精神医学界逐渐放宽了相当一部分醉酒者的刑事责任能力评定标准。这似乎有悖于现行法的规定,为了使该范围的鉴定与现行法规保持一致,笔者从医和法的两维角度探讨了如何评定急性酒精中毒者的刑事责任能力。     

国际法视野下的日本“集体自卫权”问题

“集体自卫权”是现代国际法给予主权国家的一项固有权利,也是维护本国利益和同盟安全的重要法律制度.由于“二战”的历史原因,日本现行《宪法》第9条中明确规定禁止行使集体自卫权.但因冷战影响、日美同盟以及近年来日本政坛“向右转”,这一所谓的和平宪法原则遭到持续践踏和严重挑战.本文通过对日本现行宪法相关内容成因和沿革的分析,力求阐释其对日本国内政治、亚州国家及国际秩序的重要影响,以期引起包括中国在内的国际社会更加高度的重视和警惕,并运用相应举措对日本右翼势力的修宪图谋给予必要的国际制约.     

Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case

In its recent Wall Opinion, the International Court of Justicegave rather short shrift to Israel’s claims that the constructionof the wall could be justified as an act of self-defence inthe sense of Article 51 United Nations Charter. This articleassesses the Court’s approach and places it in the broadercontext of ICJ pronouncements on the use of force. It suggeststhat the Court failed to appreciate the complex legal problemsto which Israel’s claim gave rise, in particular the problemof self-defence against attacks by non-state actors. It showsthat the Court’s restrictive understanding of self-defence,while following the 1986 merits judgment in the Nicaragua case,is difficult to bring in line with modern state practice, andincreases the pressure to admit other, non-written, exceptionsto Article 2(4) of the UN Charter.     

The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-Appraisal

Netherlands International Law Review -     

The Need for Effective Dialogue

In common with some other work on the topic of theft of electronic products, the approach of project MARC is to lay considerable responsibility for these crimes at the door of the electronics manufacturers. This seems misplaced and appears to stem from an insufficient appreciation of the nature and drivers of the global consumer electronics market and an ineffective dialogue with the manufacturers. Many options for additional security are possible, but the global nature of the market, the ever-diminishing product lifetimes of electronic products and consumer reluctance to ascribe a high value to such features complicates their introduction. Thought should be given to the establishment of a new quasi-official body to bring together the stakeholders to create a constructive dialogue between interested parties.     

Montesquieu's Mistakes and the True Meaning of Separation

In The Spirit of the Laws, Montesquieu concluded that a constitutionof liberty could best be achieved, and had been achieved inBritain, by assigning three essentially different governmentalactivities to different actors. He was wrong. His mistaken conclusionrested on two errors. First, Montesquieu thought that the primaryexercise of powers could durably be divided only where thosepowers differed in kind. Second, Montesquieu failed to recognizethe lawmaking character of executive and judicial expositionof existing law. This article analyzes implications of Montesquieu’smistakes for modern claims, both in Britain and in the UnitedStates, that liberty and the rule of law are promoted by separatingpower in certain contexts. In particular, this article questionsthe British Government’s recent claim that the valuesunderlying separation-of-powers theory call for removing ultimateappellate jurisdiction from the House of Lords. It also tracesMontesquieu’s influence on the American founders’attempt to separate power along essentialist lines, and considerssome sub-optimal consequences of that attempt, including thenon-delegation quandary and the emergence of an unchecked judiciallawmaker.     

论鉴定错误的产生及对证据认定的影响

鉴定意见中可能存在的错误直接关系到对证据的认定和使用,鉴定错误主要源于实质性错误、概率性错误和操作性错误。实质性错误是鉴定所依据的理论、技术方法或所作的推论不具有科学性,鉴定结论自始错误。概率性错误是科学鉴定的结论依概率而存在错误的可能性。操作性错误是由于鉴定所使用的仪器设备的系统误差以及鉴定人操作中的随机误差而可能产生的鉴定结论的不准确。在证据鉴定过程中避免或控制错误的发生,在案件审判中理解和把握错误的性质,对鉴定证据的科学认定以及审判的合理公正有重要的意义。     

Assessing the Need for Gender-Specific Explanations of Prisoner Victimization

The literature on differences in the carceral experiences of women and men underscores the relevance of both background (pre-prison) and confinement factors for shaping inmates’ experiences during incarceration, but with a heavier emphasis on linkages between background factors and problems women face during confinement. Here, we apply these ideas to an understanding of sex differences in factors influencing victimization risk during incarceration. Sex-specific models of physical assaults and property thefts were estimated for random samples of inmates from 46 prisons in Ohio and Kentucky. Background factors were more important than confinement factors for influencing assaults on women whereas both sets of factors were relevant for men. Both background and confinement factors were important for predicting theft victimizations for both groups although the magnitude of several effects varied by an inmate’s sex. Findings suggest that effective crime prevention strategies in prison may vary across facilities for women and for men.     

The Need for Regulating Anonymous Remailers

The internet is being used for a number of illicit purposes including: the dissemination of child pornography, cyber-stalking, on-line defamation, copyright infringement and the destruction of trade secrets. Many of these illicit activities have proliferated in recent years because of the increasing use of anonymous remailers. Originally intended to provide anonymity for political dissidents and to assist the discussion of sensitive matters such as abuse or the spread of sexual disease, remailers are now widely used for less noble purposes. A remailer strips the identification marks off an e-mail and replaces it with marks of its own. By combining a chain of remailers with the use of encryption technology, an author can now post messages to Usenet and send e-mail with almost perfect anonymity. Although the majority of anonymous remailers currently exist in Western democracies, the fact that any civil libertarian, commercial operator or criminal can turn their computer into a remailer raises international concern. If strict liability is imposed on remailer operators, it will force these remailers to shut down, only to later reopen in 'fraud-friendly' foreign jurisdictions. This paper will critique the leading academic legal literature regarding anonymous remailers. It will then propose the need for international regulation, while at the same time ensuring the confidentiality concerns of legitimate remailer users.     

兵团调犯及实施易地改造的必要性及理论基础

兵团作为国家实施罪犯易地改造的重要基地,它的存在是十分必要的.我们从刑罚的报应理论、罪刑均衡理论、刑罚实现和环境关系的理论以及刑罚执行的效益理论中得到求证.     

Classification of Asphyxia: The Need for Standardization

Abstract: The classification of asphyxia and the definitions of subtypes are far from being uniform, varying widely from one textbook to another and from one paper to the next. Unfortunately, similar research designs can lead to totally different results depending on the definitions used. Closely comparable cases are called differently by equally competent forensic pathologists. This study highlights the discrepancies between authors and tries to draw mainstream definitions, to propose a unified system of classification. It is proposed to classify asphyxia in forensic context in four main categories: suffocation, strangulation, mechanical asphyxia, and drowning. Suffocation subdivides in smothering, choking, and confined spaces/entrapment/vitiated atmosphere. Strangulation includes three separate forms: ligature strangulation, hanging, and manual strangulation. As for mechanical asphyxia, it encompasses positional asphyxia as well as traumatic asphyxia. The rationales behind this proposed unified model are discussed.     

How the Need for Cognition Scale Predicts Behavior in Mock Jury Deliberations

The role of Need for Cognition (NC) in mock jury deliberations was examined. Study 1 showed that when groups of 4 (2 high and 2 low in NC) deliberated together, high-NCs spoke significantly longer than low-NCs and were perceived as more active and more persuasive. High-NCs were not, however, viewed as generating arguments that were more valid or more logical. In Study 2, participants deliberated in dyads with a confederate who delivered either strong or weak arguments against the participant's position. Contrary to expectation, low-NCs were more responsive to differences in argument quality. The findings suggest that, in mock jury deliberations, high-NCs are the active participators whereas low-NCs are the quiet contemplators. Implications for legal practice and policy are discussed.