Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

“紧急状态”、“战争状态”概念及辨析

紧急状态和战争状态是我国法律必须明确却而尚未明确的两个概念。紧急状态是相当程度危险下的一国国内的社会状态 ;依据不同的标准 ,可以对其外延作不同划分。战争状态可以从传统国际法和国内法两个层次上理解。紧急状态和战争状态的关系取决于一国法律对紧急状态的界定和在什么意义上阐述战争状态。     

Stateless Law: Kelsen's Conception and its Limits

Hans Kelsen’s claim that the state and the law are identicalis surrounded by a somewhat mystical air. Yet, the ‘identitythesis’ loses much of its mystical aura when it is seenas an attempt to recast the state, qua social fact, in deontologicalterms. The state is seen as a condition necessary to accountfor the validity of legal acts. Indeed, the meaning of the stateis reduced to the function performed by a conception of orderin the reproduction of a system of norms. No further socialfact would attest to its existence. From a sociological pointof view, all law is essentially, and principally, law sans state.     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.     

'The erosion of property law principles in cohabitation disputes--a step too far?': Stack V Dowder [2007] 1 All ER 929, HL

Cohabitation of unmarried couples is becoming ever so popularin the society. Accordingly the number of property disputesbetween such couples is on the rise. Until now the law in thisarea was marred with conflicting dictums. In Stack v Dowdenthe House of Lords tried to resolve these conflicts by layingdown a simple rule that if there is a joint legal ownershipthe presumption would be of joint beneficial ownership. Thisarticle argues that the framework suggested by the majorityof House of Lords in Stack v Dowden cannot be rationalized bythe long standing law of property.     

An Eye for an Eye: Proportionality as a Moral Principle of Punishment

The lex talionis of the Old Testament has been widely perceived—understandably,but mistakenly—as a barbaric law of retribution in kind.It is better understood as a seminal expression of restraintand proportionality as moral principles of punishment. Thishas been recognized from the earliest times. Over the interveningcenturies, the lex talionis has lost neither its moral significancenor its penal relevance. This is reflected in H.L.A. Hart'ssynthesis of modern retributivist and utilitarian theories ofpunishment and, again, in contemporary Canadian law throughthe recognition of proportionality as the fundamental principleof sentencing under the Criminal Code. The tension between thisfundamental principle and Canada's increasing resort to mandatoryminimum sentences of imprisonment is examined briefly in thislight.     

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.     

An Intentionally Unfair Trial

Numerous flaws made the Dujail trial a violation of the internationallyprotected human right to a fair trial. The United States andthe Iraqi authorities conducted an unfair trial knowing thatboth the Third and Fourth Geneva Convention describe ‘wilfullydepriving’ a person ‘of the rights of fair and regulartrial’ as a war crime. Even if Saddam Hussein was notto be regarded as a prisoner of war, that is, merely as a civilian,in any case his right to fair trial was protected by internationallaw. According to the author, both the relevant states and theindividuals involved in the unfair Dujail trial bear responsibilityfor breaches of international law.     

The Crime of Aggression before the House of Lords: Chronicle of a Death Foretold

In the days preceding the invasion of Iraq by the Coalitionforces, groups of individuals committed acts of civil disobediencein British military bases to hinder what they thought were unlawfulpreparations for an aggressive war. In R v. Jones et al., theHouse of Lords examined the question of whether individualscan rely upon the alleged prevention of crimes against peaceto justify otherwise unlawful actions under English law. TheLords ruled that the crime of aggression is a crime under customaryinternational law, yet not under English law. This followedfrom the principle that customary crimes cannot be incorporatedinto the English legal system without statutory enactment. Asa result, the appellants could not invoke the ‘Nurembergdefence’ to elude responsibility incurred under domesticlegislation.     

中国刑法语境中的“共谋罪”考辨

共谋罪是英美刑法特有的概念。共谋罪的本质是二人以上就犯罪、不法行为或其他行为的实施达成协议。惩罚共谋罪本质是惩罚不法协议。围绕“共谋罪独立于目标犯罪而具有可罚性”的基础性观念,英美刑法创设了相应的实体法和程序法规则。我国刑法中的阴谋犯、预备犯等与英美刑法共谋罪从根本上说是不同的范畴。我国刑法并不惩罚共谋罪。     

The creation of RICO: Law as a knowledge diffusion process

This paper uses historical content analysis to examine the developmentof the Racketeer Influenced Corrupt Organizations Act (RICO). It is argued that certain historical events led to the definition of organized crime as an alien conspiracy and helped shape the RICO law. The theoreticalframeworks of sociology of knowledge and innovation diffusion are used to relate the development of RICO to the alien conspiracy view. Thoughtof in this context, law is the result of a knowledge creation and diffusion process. This paper demonstrates how one knowledge diffusion process (the acceptance of organized crime as a national conspiracy)affected a new knowledge creation process culminating in the RICO law.     

犯意之于美国刑法中的共谋

从构成美国刑法中犯罪横向典型样态的共谋的发展历史和构成角度出发,围绕共谋当中的犯意规定加以研讨,主要考察了美国刑法实践对于意图以及明知的选择,在此基础上分析了针对随附情状的犯意,并且考察了动机在共谋犯罪当中的相关性的有无。     

The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA

In its 2006 National Security Strategy, the USA reaffirms thecontroversial doctrine of pre-emptive self-defence as crucialin the "war on terror" proclaimed after the attacks of 9/11.But it does not provide a detailed examination of pre-emption.The questions left open in the 2002 US National Security Strategyas to what will trigger pre-emptive action, when action againstnon-State actors will be permissible and what degree of forcewill be proportionate in pre-emptive action are still unresolved.The promise that "The reasons for our actions will be clear,the force measured and the cause just" does not offer much inthe way of specific guidance. It is very striking that in thiscontext, the US strategy makes no reference to internationallaw or to the role of the UN Security Council. The other mainfocus of the strategy is on the "promotion of democracy", butit does not go so far as to assert any legal right to use forcefor this purpose, and it makes only passing reference to humanitarianintervention. The EU 2003 Security Strategy provides a markedcontrast in that it does not adopt the doctrine of pre-emptiveself-defence, does not expressly identify "rogue States" anddoes profess respect for international law and for the roleof the UN. Other States have not generally shown themselveswilling to accept a Bush doctrine of pre-emptive self-defence.They agree that there are new threats facing the world frominternational terrorists and the danger of proliferation ofweapons of mass destruction, but the 2005 World Summit showedclearly that there is no general acceptance of pre-emptive action.Moreover, the International Court of Justice still follows acautious approach to self-defence. The 2006 National SecurityStrategy largely reaffirms the doctrines of the earlier 2002Strategy, but whereas the focus in the 2002 Strategy was onthe threat posed by Iraq and North Korea; attention has nowshifted to Iran and Syria, accused of being State sponsors ofterror by Hizbollah and Al-Qaida. The article ends with a discussionof the recent conflict in Lebanon: this raised the crucial questionwhether the war on terror gave Israel a wide right to use force,even a pre-emptive right. The conflict highlights dramaticallythe practical significance of the divisions on the scope ofthe law of self-defence with regard to action against non-Stateactors, pre-emption and proportionality.     

The Legacy of Nuremberg

The Nuremberg trial, later followed by the Tokyo trial, is amilestone in the development of international law. For the firsttime in modern history, the leaders of a defeated country wereindicted for committing serious crimes jeopardizing the basesof peaceful coexistence among individual human beings and peoples:crimes against peace, war crimes and crimes against humanity.German objections criticizing crimes against peace as havingno legal basis and, therefore, contradicting the principle nullumcrimen sine lege, were justified. To date, the legal positionhas not changed, since the international community has consistentlyrefrained from including aggression in the lists of offencesprosecutable under the statutes of the currently existing internationalcriminal courts. However, no well-founded objections could beraised against the indictment for war crimes and crimes againsthumanity. Concerning offences of such abhorrent nature, no offendercan invoke nullum crimen that protects only legitimate confidence.To hold to account political leaders, directly under internationallaw, for criminal actions organized and ordered by them is anecessity in a world where the basic axioms of the internationalsystem have changed: state sovereignty has lost its absolutecharacter and is counterbalanced by the requirements of humanrights protection. The emergence of international criminal justiceembodies the concept of international community in the mostpalpable manner. Fortunately, some of the defects of the Nurembergtrial have been remedied today: no arbitrary picking and choosingof the accused by the prosecution is possible before the InternationalCriminal Court; prosecutors as well as the judges of all existingjudicial bodies are carefully selected by the internationalcommunity with a view to avoiding any illegitimate bias.     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise

This article dissects the Tadi court's argument for findingthe doctrine of joint criminal enterprise in the ICTY Statute.The key arguments are identified and each are found to be eitherproblematic or insufficient to deduce the doctrine from thestatute: the object and purpose of the statute to punish majorwar criminals, the inherently collective nature of war crimesand genocide and the conviction of war criminals for joint enterprisesin World War II cases. The author criticizes this over-relianceon international case law and the insufficient attention tothe language of criminal statutes when interpreting conspiracydoctrines. The result of these mistakes is a doctrine of jointcriminal enterprise that fails to offer a sufficiently nuancedtreatment of intentionality, foreseeability and culpability.Specifically, the doctrine in its current form suffers fromthree conceptual deficiencies: (1) the mistaken attributionof criminal liability for contributors who do not intend tofurther the criminal purpose of the enterprise, (2) the impositionof criminal liability for the foreseeable acts of one's co-conspiratorsand (3) the mistaken claim that all members of a joint enterpriseare equally culpable for the actions of its members. The authorconcludes by briefly suggesting amendments to the Rome Statuteto rectify these deficiencies.     

Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia

International law, especially its customary part, evolves toa great extent through acts of State practice serving as precedents.If States do not want that their behaviour becomes law (i.e.if they prefer to act contrary to Kant's categorical imperative),they claim that certain acts of their behaviour are so unique,so peculiar that they must not be considered as contributingto the change of law (they express their opinio non juris).In the 1990s, the UN Security Council also found that only uniquenessof situations in Somalia, Haiti and Bosnia-Herzegovina justifiedthe use of "all necessary means" to deal with those situations.More recently, the recognition of the independence of Kosovoby a number of States and the recognition of Abkhazia and SouthOssetia by Russia were described by recognizing States as beingso unique, so sui generis that they could not serve as precedents.The article argues that the uniqueness, or parallels for thatmatter, is usually in the eye of the beholder. Whether certainsituations, facts or acts serve as precedents depends to a greatextent on whether one is interested in seeing them as precedentsor not. People too often act upon their ideologies, beliefsand prejudices, not upon facts; the latter are interpreted inthe light of preconceived ideas, or as Charles King, writingof the Georgia–Russian war, observes, "unfortunately,Western thinking of Russia has too often substituted analogyfor analysis" ("Putin's March to the Sea", Foreign Affairs,Vol. 87, No. 6, November–December 2008). Then this articleproceeds to study in greater detail parallels and differencesbetween Kosovo, on the one hand, and Abkhazia and South Ossetia,on the other. The study ends with an inquest into the matterof how different States (or categories of States) deal withsecessionist problems.     

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.