The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

Netherlands International Law Review - The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing...     

The Role of Denial in the ‘Theft of Nature’: Comparing Biopiracy and Climate Change

Since its inception, green criminology has highlighted, examined and analysed environmental degradation and destruction. The ‘theft of nature’ is both an example and a driver of illegal and ‘lawful but awful’ acts and omissions that degrade the environment. Even though this theft is widespread and sometimes well known, it persists because powerful actors put forward an influential narrative of denial that obstructs interventions. This paper explores the role of denial in two thefts of nature—biopiracy and climate change—and compares and contrasts the manifestations of denial that contribute to their continuation. We consider the ‘appeal to higher loyalties’ (economic interests over environmental concerns), and discuss the implications if such denial goes unchallenged and remains the central narrative.     

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

The Origins of ‘Alien Status’ in the English Common Law

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance.     

The Role of Fear (Bhaya) in the Nikāyas and in the Abhidhamma

According to Buddhist soteriology, fear is a direct cause of suffering and one of the main obstacles in the path to liberation. Pāli Suttas and Abhidhamma present a number of sophisticated strategies to deal with fear and to overcome it. Nevertheless, in the Nikāyas and in the Abhidhamma there are also consistent instructions about implementing fear in meditative practices and considering it as a valuable ally in the pursuit of nibbāna By means of a lexicographical study of selected passages and especially of two compounds (bhayūparata and abhayūparata), this paper demonstrates that fear may have the crucial function of stimulating the meditator: through reiterated admonishments and reflections that evoke a feeling of dread, the meditator gets weary of unwholesome patterns and is prompted to put effort in his/her own practice. Evidence proves that this set of instructions is ultimately consistent with the several teachings that emphasize the importance of counteracting fear and fostering fearlessness, which is described as a quality of liberation as well as an attitude to be cultivated. In fact, a close analysis of the dynamics involved in bhaya (fear) and abhaya (fearlessness) as graphically depicted in the Nikāyas and in the Abhidhamma texts, reveals that stirring fear and letting go of fear are two essential steps of the same process.     

‘Inequality of Goods and Lands’ in Mortgaged Democracies: Paradigms and Effects of Global Comparative Law

Liverpool Law Review - The article reappraises the law’s ‘egalitarian commitment’ in an era of global inequality. It upholds that such an egalitarian predicament scarcely squares...     

‘Burqa Avenger’: Law and Religious Practices in Secular Space

The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.     

The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction

This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome. This revised version was published online in July 2006 with corrections to the Cover Date.     

Adorno,Freedom and Criminal Law: The ‘Determinist Challenge’ Revitalised

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions.     

Insularity and Law: Diversity and Changeability of Islands’ Statuses—The Example of French Outermost Regions in French and EU Law Systems

This article deals with the interactions between national and European legal corpuses about insular territories. French outermost regions (ORs) were first called “départements d’outre-mer” (overseas departments) at the dawn of the French Fourth Republic; they are distinct from other overseas entities. This denomination is used again in the initial EEC treaty in which French overseas departments and overseas countries and territories (OCTs) are distinct. Together with Spanish and Portuguese outermost regions, French overseas departments manage to change EU law in favour of ORs even if the legal differentiation has limits. Moreover, some recent amendments to the French Constitution allow for status variations and even mutations, which can also be found nowadays in EU law.

     

Law and Violence in Richard Wright's ‘Native Son’

This paper seeks to intervene in the continuing debate around violence as a function of law and violence as a condition of justice. It examines a key literary work of the American civil rights movement as an instance of the establishment of an ethical community anchored by the literary text, and argues that, within such a community, the literary text is the counter-violence to which the law can yield. This revised version was published online in July 2006 with corrections to the Cover Date.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

The Ambivalent Notion of ‘Fundamental Breach’ in Indian Law of Contract: Towards a New Paradigm

Liverpool Law Review - This paper analyses the concept of fundamental breach under Indian law of contract. In doing so, it provides a comparative assessment with English law. It examines some...     

Justice ‘Under’ Law: The Bodily Incarnation of Legal Conceptions Over Time

The article uses embodiment and the experiential basis of conceptual metaphor to argue for the metaphorical essence of abstract legal thought. Abstract concepts like ‘law’ and ‘justice’ need to borrow from a spatial, bodily, or physical prototype in order to be conceptualised, seen, for example, in the fact that justice preferably is found ‘under’ law. Three conceptual categories of how law is conceptualised is examined: law as an object, law as a vertical relation, and law as an area. The Google Ngram Viewer, based on the massive library of books that Google has scanned, has been used to study legally relevant conceptions over time within each of these three categories, from 1800 to 2000. In addition, the article suggests a type of analytical method of ‘metaphor triangulation,’ that is, the replacement of prevailing metaphors with unusual ones in order to increase the level of awareness of what conceptual content the prevailing metaphors involve.     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

‘Making Our Country Great Again’: The Politics of Subjectivity in an Age of National-Populism

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - How could we understand the emotive power of national-populist discourses, indeed the calls to...     

The Rule of Law in Today’s Africa∗

This article is based on the recent decision of the Supreme Court of Nigeria in a case involving illness resulting from the consumption of a bottled drink which contained a dead cockroach. The main issues considered were manufacturers' duty of care; the liability of a retailer in negligence; burden of proof; and causation. Evidence showed that the drink manufactured by the second respondent was sold by the first respondent to the appellant in the same condition in which it left the second respondent. The Court held that in the circumstances of the case, only the second respondent was liable to the appellant.