Criminalizing Complicity: A Comparative Analysis

The Rome Statute's provision on complicity is remarkably vaguegiven the significance of the issue in international criminallaw. In search of guidance, this article takes a closer lookat the models for accomplice liability in domestic criminallaw, focusing on two systems that may be taken as representativesof the civil law and common law world, respectively: Germanand American criminal law.     

Complicity,Collectives, and Killing in War*

Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants are not permissible targets because they are not complicit. I then argue that just combatants have some reason to direct force against unjust combatants rather than unjust noncombatants, because they should respect the reasonable self-determining decisions of other political communities, when those communities settle on the distribution of a negative surplus of cost for which they are collectively but not individually responsible. These collectivist reasons will not fully justify the Permission and the Prohibition, but they can contribute to that justification.     

共同侵权与共同犯罪界限论

共同侵权与共同犯罪分别属于侵权法与刑法中的两项不同的制度。由于法律规定的模糊性、个案的复杂性、个人主观认识的差异性以及共同侵权与共同犯罪各自领域内理论学说的纷争,导致两者间的界限模糊。应从立法目的、本质、构成要件、法律责任等方面界分共同侵权与共同犯罪。     

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

法律案合宪性审查的程序、事项与方法

法律案的合宪性审查是立法机关在立法过程中对法律案是否符合宪法进行的自我、事前控制形式,是我国合宪性审查机制的重要组成部分。在不存在根本性制度障碍的前提下,先行激活法律案的合宪性审查对于提升宪法实施和宪法监督水平,维护宪法的权威性具有非常重要的实践意义。《立法法》设定的审议程序(包括“前置性”审议程序与正式审议程序)蕴含着对法律案进行合宪性审查的契机。立法机关可以根据我国宪法在内容构造上的特点,立足于本国立法的现实需要并借鉴其他国家的合宪性审查经验,将合宪性审查的对象锁定在法律草案在内容上最有可能涉及违宪的某些具体事项上,如此才能提高审查效率;针对较为具体的审查事项,立法机关需要创造性运用“抽象公益条款的禁止”“平等原则的过滤”以及“比例原则的审视”等方法,有效地排除法律草案中的违宪情形,稳健地推进与我国国情相适应的合宪性审查工作。     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

基因、伦理及其法律问题

一人类基因组计划是跨世纪的伟大工程。它不仅通过揭示人类生命活动的遗传学基础而带动整个生命科学的发展,而且工业、农业、环境保护也将从中获益匪浅。同时,人类基因计划的研究对人类原有的社会、伦理和法律问题的冲击也是空前的。人类基因组计划自１９９０年正式实施以来,已经取得了巨大的进展。人类基因组计划大致分为两个阶段：第一阶段是读出人类基因组３０亿个核苷酸对组成的漫长序列（即基因组全部ATCG语言）;第二阶段是读懂这部认识人类自身的“天书”（即读懂基因是全部由３０亿个ATGC符号组成的序列）。人类基因组计划的…     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.     

Structured Like A Monster: Understanding Human Difference Through A Legal Category

This article will argue that the legal idea of the monster offers to inform contemporary thinking in relation to outsiders. Drawing on the work of Foucault it will be contended that the process, whereby at least some human beings are positioned as outsiders, is structured like a monster. That is to say, at least some constructions or representations of human difference, both legal and non-legal, are informed by the monster category. The article will think through and unpack Foucault’s the idea of the monster, and his sufficient and necessary conditions of monster production. In the process, the article will identify two contemporary figures that bear the legacy of this legal category. These are the figures of Foucault’s abnormal individual and the human/animal hybrid of genetic medicine, figures that can neither be reduced to products of law or disentangled from its domain. An emphasis on the importance of the template of the monster in understanding these contemporary figures points to its relevance to legal scholarship within fields such as gender, sexuality and race, and bioethics respectively.

On Complicity and Compromise: A Reply to Peter French and Steven Ratner

Peter French’s and Steven Ratner’s thoughtful comments are helpful in advancing the analysis we offered in our book On Complicity and Compromise. Inevitably, there are areas of disagreement and bones to pick. However, our primary concern in this reply will be to press, with their assistance, the more positive agenda.     

Peter Brooks,Troubling Confessions: Speaking Guilt in Law and Literature; Mariana Valverde,Diseases of the Will: Alcohol and the Dilemmas of Freedom

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

德商、道德价值规律与品德标尺的应用

本文首先提出德商(Moral Quotient,MQ)的定义、计算公式和测评步骤。德商概念的引入以及由此推出的品德标尺理论旨在为公民道德建设提供了理论参考。     

Complicating Complicity: Aiding and Abetting Causing Death by Dangerous Driving in R v Martin

The law of complicity, particularly relating to joint enterprise liability, appears to becoming more and more complicated. Cases on secondary liability for murder in the Court of Appeal demonstrate that this area of law is difficult to interpret and to apply. Even more complex is the question of how to apply these cases to offences other than murder. This case note attempts to address the Court of Appeal's questions in the case of R v Martin as to how the jury ought to be directed in a case of aiding and abetting causing death by dangerous driving.     

Three Duties to Rescue: Moral,Civil, and Criminal

Law and Philosophy -     

中国人的道德结构:道德差序圈

道德差序圈是指个体对自己与其他实体进行道德考量的心理结构。它具有两个维度,即范围与差序。前者指的是究竟有多少道德实体让个体感到应对其负道德义务,并进入个体的道德考量中;而后者指的是究竟不同的道德圈层之间个体对其道德义务感与道德考量程度上有多大区别。道德差序圈是基于中国传统文化背景并结合西方科学范式产生的概念,对于西方道德圈研究而言,这种结合能够巧妙地弥补其对差序维度的研究缺陷,使其在差序维度得以蓬勃生长的文化土壤中得到更为充分的阐明;而对于我国差序格局研究而言,道德圈概念的融入不仅能够为其注入实证科学的新鲜血液,也为其被西方学者所理解打开了大门。因此,道德差序圈是一座能够联结东西方文化交流的桥梁,通过两种最能触及中西文化本质的道德概念之融合,我们期望能够在解释中国人的道德判断与行为时做出有中国特色、中国风格、中国气派的尝试。     

Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society

Since the attacks of September 11th, 2001, terrorism has experienced a prominence in discourse across the U.S. The representations of terrorists and terrorism by the news media and politi have contributed to the edifice of terrorism as a moral panic. This treatise examines the social effects that have or may occur due to the social construction of a moral panic of terrorism. The thematic frame is situated within Cohens stages of a moral panic. We offer an analysis of the medias depiction and coverage of acts of terrorism, and legislative, political and legal responses in the form of social and cultural changes occurring from the creation of a moral panic. In addition, we offer an analysis of the states vested interest in the social construction of this panic, leading to increased levels of fear, targeted at the general publics consciousness. This article concludes that the presentation of terrorism and terrorists by the media and politi have contributed to unnecessary levels of panic and fear, misguided public consciousness, and the development of legislation creating negative social ramifications yet be seen.     

Justice Matters: lifting the lid on Pandora's box

The starting point of Justice Matters is simple: criminal justice is far too big; far too costly; far too intrusive. Far from being a means of delivering social justice, it is the cause of much social injustice. The large footprint in society occupied by the combined criminal justice institutions is profoundly socially harmful.

The criminal justice process inflicts unnecessary suffering on many thousands of suspects, defendants and convictees every year. This suffering is experienced very differently depending on your position in society: for instance whether you are young or old, black or white, male or female, rich or poor.

The collateral damage of the criminal justice process is also profound. A criminal record isa life sentence for many: an ongoing obstacle to participation in work and the wider community. Families and communities whose loved ones are arrested, prosecuted, imprisoned and supervised experience deep and lasting loss. Collateral damage is also found in the stress experienced by many victims, whose traumas and distress are often left unresolved, and in the dissatisfaction of witnesses, whose experience of the criminal justice process can be so negative.

Criminal justice also crowds out other, more innovative, just and effective policy and practice solutions to the problems our society faces. It is good at punishing certain individuals and groups. It fails to prevent social problems from arising, or to resolve those that occur.

To get involved in Justice Matters visit: www.crimeandjustice.org.uk/why-justice-matters