The Paradigm of the War on Crime: Legitimating Inhuman Treatment?

Since 11 September 2001, a new paradigm has developed in criminallaw. Parallel to the idea of the ‘war on terror’,a paradigm based around ‘war on crime’ has emerged.Inevitably, however, a paradigm of war leads to abandoning scientificapproaches based on a legal-moral vision (crime, guilt and punishment)in favour of a merely pragmatic vision, which associates nationalsecurity with social defence. Based on an unclear concept ofdangerousness, presumed by simple membership in a group labelled‘enemy’, the goal is to neutralize, or even eliminate,the criminal/deviant. When combined with a denial of internationalprotections, deconstructing national criminal law thus runsthe risk of pushing a black hole through the rule of law. Manyhave criticized such a paradigm; however, the author pointsout that the paradigm of the war on crime (and more generallythe war on terror), provided that it respects internationallaw, can be useful, because it shows the need to overcome thebinary opposition between war and peace, as well as betweenwar crimes and ordinary crimes. Nonetheless, it must be clearthat this paradigm can only be one of transition. To overcomethe war–peace dichotomy in a global community and to reconstructthe relationship between terrorism and torture, neither a ‘warcrimes’ nor a ‘war on crime’ paradigm is trulysufficient. Only through the amplification of a paradigm of‘crime against humanity’ (itself unstable and evolvingbut free from the war metaphor) can we reconstruct humanityas a value and make it the cornerstone of any legal system.     

The Declaration of War in the Dutch Constitution and Models of Legal Communication

Models of communication,frequently used in legal semiotics, offer ananalytic framework for the relationship betweenlegal rules on the one hand and correspondingsocial behaviour on the other. Semiotic modelsseek to clarify (un)successful legalcommunication; they try to reveal the processesof interpretation and sense construction. Inthis paper, these processes are described,taking Article 96 of the Dutch Constitution asan example. Although the text of Article 96 hasremained nearly unchanged, its substantivemeaning has changed fundamentally. Thebackground and development of the `declarationof war', as laid down in Article 96, areanalysed and fully elaborated. It is concludedthat the classical models of communication,largely based upon the idea of the existence ofa linear relationship between rule and conduct,hardly correspond with the complex processes asdescribed in the analysis of Article96 Communication between rule and practice isobviously more than a one-waycausality, in which rule information `flows'from sender (legislator) to receiver (citizen).The institutional model of communication,developed by Ruiter, offers a different approach.The institutional model is based on the notionof law as `institutional landscaping';realisation depends on common beliefs andgeneral acceptance. The influence of the socialpractice on the meaning of legal rules becomesan important factor. The institutional theoryseems to offer a more adequate model for thecomplex reality of legal communication.     

The Rule of Law and Authoritarian Rule: Legal Politics in Sudan

Mark Fathi, Massoud . 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge University Press. Pp. xxii + 265. $109.99 cloth, $34.99 paper. Does the rule of law guarantee peace and democracy, as so many people in the development and governance field believe? What are the historical and sociocultural conditions that shape the way rule of law mechanisms work in practice? Mark Massoud's monograph tracing the changing dimensions of the rule of law in Sudan from its colonial period to the present offers an important perspective on these questions, casting doubt on the simple argument that the rule of law produces democracy and peace. Instead, he shows how colonial and authoritarian rulers used the rule of law to consolidate power and legitimate their rule. In Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan, Massoud develops the concept of legal politics, arguing that the way the rule of law works varies with the political system in which it is embedded. He concludes that the forms of legal politics that reinforce the power and authority of legal institutions are more likely to sustain an authoritarian state than to bring democratic rule. His analysis is a valuable caution to those who promote the rule of law as the salvation for all. Taking a sociolegal perspective, he shows how it works in practice.     

Finding cover: Legal trauma and how to take care of it

As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable social problems more successfully than attempts formally to enforce applicable law. This revised version was published online in November 2006 with corrections to the Cover Date.     

论中国和平发展与国际法的交互影响和作用

A peaceful and harmonious world is an important social basis for China’s peaceful development, and international law lays a legal foundation and guarantee for building such a world. In the “village of globe” with co-existence and economic globalization, international law provides China a peaceful development with legal certainty in external environment of peace and security, fair and equal international competitive order, and international cooperation; and on the other hand, it puts on an increasing legal restraint on the internal and external strategies of China’s peaceful development. At the same time, the peaceful development of China deems to make a great contribution to the world, which are the main subject of international law in peace and development, as well as to human rights, rule of law and democracy, which are the universal values pursued by international law. Zeng Lingliang, Ph.D of law, is presently a dean and professor in the Faculty of Law in University of Macau. He is an awardee of the Cheung Kong Scholars Award Program and Jean Monnet Chair of European Union Law in Wuhan University, and one of the first three individuals nominated by the China government on the list of panelists in the WTO. He has published many articles on WTO issues, EU law and international law, and his influenced monographs are European Communities and Modern International Law (1992) and its revised edition—European Union and Modern International Law (1994), Law of World Trade Organization (1996), International Law and China in the Early 21 ^st Century (2005) and the Essentials of EU Law—in the New Perspective of the Treaty on the Constitution for Europe (2007).     

Freedom of Expression in the Dutch Constitution: Censorship and Sense Construction

Models of communication,frequently used in legal semiotics, offeran analytic framework for the relationshipbetween legal rules on the one hand andcorresponding behaviour on the other.Semiotic models seek to clarify(un)successful legal communication; theytry to reveal the processes ofinterpretation and sense construction. Theessence of these models is that thesubstantive meaning of a rule can (orcannot) be transmitted in a `flow model'of information. The models are based upona linear causality of ruleinformation. In this paper, the processesof sense construction are described,taking the freedom of expression, as laiddown in Article 7 of the DutchConstitution, as an example. Although thetext of Article 7 remained unalteredsince its first drafting in 1815, itssubstantive meaning has changedfundamentally. The transformation wascaused by complex processes that tookplace in social practice. These complexprocesses with respect to Article 7 arecompared with the transformation processesanalysed with respect to Article 96 of theDutch Constitution, published in anearlier paper. A comparison between bothArticles leads to the question: `Do weneed to construct an analytical model forlegal communication in whichreciprocal relations between legislatorand citizens are highlighted?' On thebasis of the two case studies, whichdescribe the influence of social practiceon the substantive meaning of the(textually unaltered) Articles, we have toanswer the question in the affirmative.     

Becoming-Animal,Becoming-Detainee: Encountering Human Rights Discourse in Guantanamo

The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say, of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places; secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove particularly useful here.     

《民法典》夫妻债务条款的不足与应对

《民法典》第1064条关于夫妻债务的条款源于《最高人民法院关于审理涉及夫妻债务纠纷案件适用法律有关问题的解释》,该条款原来只针对夫妻对外关系,上升为法律条文后同时适用于夫妻对内和对外关系,即“内外同一”模式。由于债权人不易了解夫妻内部情况,这种做法较易损害债权人利益,对此可以通过适当放宽债权人举证责任和强化法院职权探知予以应对。该条文从司法解释上升为法律条文时与第1089条的衔接不够顺畅,遗漏了夫妻中举债一方的举证责任,应予补充。在内容上,该条第1款和第2款都出现“共同意思表示”,鉴于该条款的法理基础是《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释(一)》第17条,建议将第1款的“共同意思表示”解释为签订合同的民事法律行为,将第2款的“共同意思表示”解释为表见代理。此外,条文中的夫妻“共同生产经营”的含义具有不确定性,建议对其进行目的性扩张解释。     

Ideas of Transgression and Buddhist Monks

It is implicit in a western understanding of law that law is a series of generalisations, which are universal and which aim to promote social community. At the same time ‘law’ is expected to operate in a territory (rather than for specific people or castes) where it applies, and to apply to a community of rights-bearing subjects. Such a view of law may have reflected part of the values of the European Enlightenment where law was seen as a rational science and where religion has been seen as excluded from law. An alternative route in the study of law is to study ‘transgressions’. The literature on ‘transgression’ suggests transgressions form an amorphous category and a proper examination of them is not closed by the normal taxonomy between the studies of ‘law as obedience’ versus ‘laws as violation’. In one sense transgressions are part of the rule, yet a separate category in their own right. I use the concept of ‘transgression’ to attempt to describe the legal significance of ‘violations’ in the rules of the Buddhist monks (Vinaya). I conclude that a proper consideration of the role of sexual desire in the Vinaya allows me to show that ‘violations were accepted within an institutional framework, that ‘violators’ were not excluded from the order of monks and that sexual experience could be seen as an alternative, if controversial, path of spiritual development.     

The Molotov Milkshake: Corporate Social Responsibility and the Market

This article investigates links between the final scene—the milkshake scene—of P. T. Anderson’s film, ‘There Will Be Blood’, and a commercial advertisement for the sale of oil, which relies on a milkshake drinking analogy. The comparison probes a tension between the aspiration for capitalist economic growth and the self-regulation of corporate social responsibility (CSR). Business figures committed to the practice of CSR struggle with the possibility that deeper, systemic forms of violence inherent in market competition supersede their attempts at installing more responsible cycles of economic exchange. A risk remains, all the while, that social and environmental concern of the kind expressed in CSR is only able to acquire ‘value’ in the market, a relational or ‘dialectical’ system of exchange, where it meets contrasting cycles or events in the market: the value of alternatives (e.g. ‘going green’) is predicated on pre-existing products or earlier cycles of marketisation. The article discusses difficulties that CSR creates in terms of making interventions and raising conflict with corporate actors, and a tendency for the system to leave inert, exposed or abandoned, those that try. The capacity of CSR to eradicate the more vicious shadow of capitalist markets is challenged in the article. There is no release, the author argues, in a concept that is so essentially dependent on market mechanisms and on competitively motivated (ex)change.     

违背善良风俗故意致人损害与纯粹经济损失保护

"背俗故意致损",是在权利和利益区分的基础上进行侵权法思考必然会遭遇的一个问题。德国民法典立法者设立第826条时,并不具有利用该条将法律与道德、习惯等法外规范相连通的直接目的。第826条的功能在后世学说的解释中形成了形式功能与实质功能两大功能群。试图为"背俗"设置实质判断标准的实质功能越来越受到学者的批判,并且在学说上出现了将纯粹经济损失保护作为第826条核心功能的观点。故意要件的本质是在缺乏社会典型公开性的纯粹经济损失领域维持行为人的预见性。法解释对该要件有所软化,但不宜将故意降低为重大过失。背俗要件的判断标准存在于判例之中。应当借鉴动态系统理论,以本土判例为素材,建构我国的"背俗故意致损"判例类型。纯粹经济损失概念并不表达一个真正的类别,而是包含了千差万别的事物,该领域不存在一般保护规则。"背俗故意致损"只是纯粹经济损失保护中的"最小值"。应当建立特别规范、保护性法律和"背俗故意致损"三层纯粹经济损失的立法保护体系。     

Foe or Friend of GATT Article XXIV: Diversity in Trade Remedy Rules

While the WTO Member countries continue to increase their FTAarrangements with divergent frameworks, they have begun to adoptmodified WTO trade remedy systems in FTAs. Although the contentand degree of these modified systems may not be significantyet, they still set very important precedents, or ‘seeds’,for ‘rule diversification’ in the world tradingsystem. Such modification typically aims to further liberalizemutual trade between FTA parties and thereby contribute to afreer world trading system. However, such rule diversificationappears to be inconsistent with the mandate of Article XXIVof GATT by worsening economically inferior trade diversion.The reinterpretation of the legal obligations in Article XXIVcommensurate with economically more reasonable structures impliesthat trade remedy rules in FTAs should be applied on a non-discriminatorybasis. Moreover, an FTA safeguard measure must precede a WTOsafeguard measure to ensure optimal competitive conditions amongtrading partners. In sum, the right channel for improving thecurrent WTO trade remedy systems is not the FTA forums but theWTO negotiation.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

On the Use of Criminal Law Notions in Determining State Responsibility for Genocide

On the face of it the 1948 Convention on Genocide appears tobe a treaty that on the one hand obliges contracting statesto criminalize and punish genocide in their domestic legal systemsand, on the other, arranges for interstate judicial cooperationfor the repression of genocide. The International Court of Justice(ICJ), in the Bosnia v. Serbia judgment, has instead held thatthe Convention, in addition to providing for the criminal liabilityof individuals, also imposes on contracting states as internationalsubjects a set of obligations (to refrain from engaging in genocide,to prevent and punish the crime, and also to refrain for allthose categories of conduct enumerated in Article III: conspiracy,incitement, attempt, complicity). This approach raises two questions:(i) is it warranted so to broaden states' responsibility? (ii)when applying such Article III categories to state responsibility,should an international court such as the ICJ that pronounceson interstate disputes rely upon criminal law categories toestablish whether a state incurs responsibility for conspiracy,complicity, and so on? Or should it instead forge autonomouslegal categories better suited to state responsibility? Theauthor sets forth doubts about whether it is appropriate totranspose criminal law categories to the corpus of internationallaw of state responsibility. In particular, his misgivings relateto the category of ‘state complicity in genocide’as set out by the Court: once the Court decided to transplantthis criminal law category to state responsibility, arguablyit should have relied upon the rigorous concept of complicity,as derived by international criminal courts from case law andthe relevant practice of states, rather than apply a notionthat finds no basis in international criminal law, in comparativecriminal law or in state practice.     

Concerted Practices and the Presence of Obligations: Joint Action in Competition Law and Social Philosophy

This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman’s model of joint action is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert’s in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and Bratman’s models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for concerted practices.     

Deconstructing Transitional Justice

Transitional justice as a field of inquiry is a relatively new one. Referring to the range of mechanisms used to assist the transition of a state or society from one form of (usually repressive) rule to a more democratic order, transitional justice has become the dominant language in which the move from war to peace is discussed in the early twenty-first century. Applying a deconstructive analysis to the question of transitional justice, the paper seeks to interrogate the core assumptions that underlie transitional justice literature in relation to the relationship between law, politics and justice. As a discourse, transitional justice is replete with antinomies or binary oppositions, that of war and peace being the most obvious. Therefore the essentially deconstructible structure of differánce already exists within the concept. By examining the ways in which legal and political narratives are framed and reproduced, the paper seeks to deconstruct the opposition between law and politics on which much of the transitional justice literature rests. The article does not purport to provide a definitive critical analysis of transitional justice but aims to provoke debate and to prompt critical scholars to engage with the themes raised by providing an introductory analysis of some of the core features of a field of inquiry which seems ripe for deconstruction.