<Emphasis Type="Bold">A</Emphasis>nti-corruption agencies: between empowerment and irrelevance

The anti-corruption activity of the 1990s is characterized by the rise of new players, such as specialized anti-corruption bodies. Anti-corruption agencies (ACAs) are public bodies of a durable nature, with a specific mission to fight corruption and reducing the opportunity structures propitious for its occurrence in society through preventive and/or repressive measures. Independently of their format and powers, ACAs encounter various constraints to their mandate, which explains the meagre results obtained by some of them. This introductory paper tries to understand the rise, future, and implications of this new kind of “integrity warrior” and to locate them in the evolving doctrine of corruption control. The objective of this edited volume is to re-launch the debate on ACAs as the most innovative feature of the anti-corruption movement of the last two decades.     

An economic theory of the regulation of preliminary measures

Preliminary measures adopted early in litigation are crucial for plaintiffs, given existing court delays and changing economic environment, but can also harm a blameless defendant. Therefore, some form of regulation is needed to minimize the harms that can result and discard non-optimal measures. Law and economic scholars have suggested that courts should control requests for preliminary measures, but this form of regulation fails to explain existing legislations, both in civil law and common law countries. This article argues that non-optimal preliminary measures can be more efficiently filtered through a strict liability regime, and that their judicial control should be residual.     

From clean up to FICAC: Anti-corruption in Fiji’s post coup politics

The leaders of Fiji’s 2006 military coup launched a ‘cleanup campaign’ and set up an Independent Commission Against Corruption. So far it has brought court cases against about 24 people. Among them is the former Prime Minister, who was charged with corruption for his role in institutions designed to promote the economic interests of indigenous Fijians (who constitute about 56% of the population). The article considers what counts as ‘corruption’ in these Affirmative Action policies: a so-called ‘Agriculture Scam’, which distributed farm implements free to Fijian farmers; a company called Fijian Holdings, which received concessional finance from the government; and a Native Land Trust Board, which collects rent on behalf of indigenous landowners. It concludes that army and popular opinion in Fiji hold conceptions of corruption that are much broader than the offences set out in the country’s penal code, and which the new ICAC is attempting to enforce.     

Cultural Cognition and Public Policy: The Case of Outpatient Commitment Laws

What explains controversy over outpatient commitment laws (OCLs), which authorize courts to order persons with mental illness to accept outpatient treatment? We hypothesized that attitudes toward OCLs reflect “cultural cognition” (DiMaggio, P. Annl Rev Sociol 23:263–287, 1997), which motivates individuals to conform their beliefs about policy-relevant facts to their cultural values. In a study involving a diverse sample of Americans (N = 1,496), we found that individuals who are hierarchical and communitarian tend to support OCLs, while those who are egalitarian and individualistic tend to oppose them. These relationships, moreover, fit the cultural cognition hypothesis: that is, rather than directly influencing OCL support, cultural values, mediated by affect, shaped individuals’ perceptions of how effectively OCLs promote public health and safety. We discuss the implications for informed public deliberation over OCLs.     

Green Criminology and Dirty Collar Crime

As a contribution to literature drawing together green criminology and studies of organised and corporate crime, this paper provides a case study of crimes and public health harms linked to the Naples garbage disposal crisis. The context is the inability of modern consumer society to cope with the problem of mass production of waste. In turn this leads to opportunities for both legal and criminal entrepreneurs to offer services that promise but fail to ‘dispose’ of the problem. The analysis draws upon environmental law and classic studies of organised crime.     

Regulatory competition in European company law

States have customarily tended to compete with one another. Not always, however, is this tendency, or the underlying methods put to use, obvious. That states (provincial divisions in the US) were competing to attract incorporations by relaxing their regulatory standards, couldn’t be seriously observed and highlighted until mid-1970s. Today, a few would doubt the existence of regulatory competition in corporate law in the US. In this paper, the author examines the issue whether the EU is (likely to be) engaged in regulatory competition in the area of company law. Answering the question in affirmative, the author proceeds to examine the strength of the race to the bottom and the race to the top theories, as developed and argued in the US, for the European setting. Since the legal systems of Member States of the EU have certain very disparate “core values” along which those systems have historically developed, relaxation of standards in the EU would take place against different variables. Because of the multitude of variables, comparable variables are unlikely to yield comparable results; either of the race theories is unlikely to satisfactorily predict the regulatory behaviour of EU Member States. Instead, since “laxation” in respect of one variable would be met by “optimisation” in respect of the other, there is likely to be simultaneous races to the top and to the bottom among the EU Member States.     

Earth system governance: a research framework

The Earth System Science Partnership, which unites all major global change research programmes, declared in 2001 an urgent need to develop “strategies for Earth System management”. Yet what such strategies might be, how they could be developed, and how effective, efficient and equitable such strategies would be, remains unspecified. It is apparent that the institutions, organizations and mechanisms by which humans currently govern their relationship with the natural environment and global biochemical systems are not only insufficient—they are also poorly understood. This article presents the science programme of the Earth System Governance Project, a new 10-year global research effort endorsed by the International Human Dimensions Programme on Global Environmental Change (IHDP). It outlines the concept of earth system governance as a challenge for the social sciences, and it elaborates on the interlinked analytical problems and research questions of earth system governance as an object of study. These analytical problems concern the overall architecture of earth system governance, agency beyond the state and of the state, the adaptiveness of governance mechanisms and processes as well as their accountability and legitimacy, and modes of allocation and access in earth system governance. The article also outlines four crosscutting research themes that are crucial for the study of each analytical problem as well as for the integrated understanding of earth system governance: the role of power, knowledge, norms and scale.     

The Right to an Impartial Hearing Trumps the Social Imperative of Bringing Accused to Trial Even ‘Down Under’

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence.     

The Limits of the Harm Principle

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights.     

Sharing a Single Seat: The Poetics and Politics of Male Intimacy in the Vikramāṅkakāvya

In this essay, I trace the enabling conditions for the major statement of the subversive subtext in Bilhaṇa’s Vikramāṅkadevacarita (VDC) by unpacking the operation of the work’s patent, eulogistic text. In particular, I will explore the place given to the depiction of male intimacy as a poetic substitute or simulacrum for the political alliances central to Vikramāditya’s coming to the throne, as described in the mahākāvya’s fourth through sixth sargas. My intention in focusing on the intense friendships between men is to highlight a significant rhetorical strategy of Bilhaṇa’s, which allowed the poet both to introduce and to buffer the poem’s most explicit statement of his skepticism towards royal power. It is this charged affective theme—one that occupied only a tenuous position within the regnant critical discourse of literary emotion at the time—that sets up Bilhaṇa’s most powerful and explicit denunciation of kingship. The explicit theme of royal praise and the subtext of its denunciation can thus be seen as contrapuntally related, which goes some way towards explaining how the court poet was able to successfully carry off his potentially incendiary literary project.