Was Inclusive Legal Positivism Founded on a Mistake?

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer.     

The Relationship Between Traumatization and Pain: What is the Role of Emotion?

The role of emotion in the relationship between traumatic experiences and physical pain was examined via path modeling by using a sample of hospital outpatients (N = 138). Most of the participants reported being traumatized (77%) and experiencing chronic pain (69%). Trauma survivors and nontraumatized individuals did not differ significantly on mean symptom scale scores (i.e., depression, anxiety, anger, dissociation, somatization and pain). However, a moderate effect size was found for dissociation. There were also significant associations found between trauma levels and levels of adult symptomatology. Interestingly, sexual abuse was less highly correlated with symptomatology than other types of traumatization, such as neglect. None of the three proposed path models describing the relationship between trauma, pain, and emotion fit the data successfully. Implications are discussed.     

How Has the Law Gone Mad? Reflections on Semiotics and Postomodernism

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

Wages of Sin? The Link Between Offending, Lifestyle and Violent Victimisation

In this study the authors examine whether there is a link between offending and violent victimisation. They explore the extent to which this link can be explained by differences in people's lifestyle. In keeping with recent criminological developments, they seek to explain differences in the risk of violent victimisation throughout peoples life course. For this purpose, data has been analysed on the past 25 years in the lives of 1,939 respondents, who constituted a representative sample of the Dutch population in 1996. The data was taken from the Netherlands Survey of Criminality and Law Enforcement. For each year of their life, data were recorded on the respondents' marital, fertility, residential, educational and employment history. What is more, for each year in this period, data are available on their violent victimisation and their offending. The data was analysed with multi-level models. The results show that people who engage in violent crimes and vandalism are at greater risk of being victims than people who do not and that this relationship can only be partially explained by lifestyle.     

The Biological Effects of Kambo: Is There a Relationship Between its Administration and Sudden Death?

Kambo is a substance obtained from the skin secretions of a frog, Phyllomedusa bicolor, popular in the Amazon region, which is administered via the transdermal route. We report a case of 42‐year‐old man found dead in his house. Near the corpse, a plastic box labeled as “Kambo sticks” was found. The man was a chronic consumer of Kambo and no previous pathology or genetic disease emerged in clinical history from the declaration of his general practitioner. Autopsy investigations and toxicological analysis were performed. The histopathological examination showed left ventricular hypertrophy. Toxicological screening was negative for ethanol and other drugs. Phyllocaerulein, phyllokinin, and deltorphin A were isolated from the Kambo sticks but, only deltorphin A was detected in blood sample. We describe the first forensic case of death associated with Kambo administration. We attempt to explain how its use could be related to the cause of sudden death in this case.     

The Comparability of Data on Convictions and Sanctions: Are International Comparisons Possible?

This article looks at the availability of data on convictions and on sanctions and measures in European countries, on the basis of the European Sourcebook data. It emphasises the limitations in the use that can currently be made of this data, although it has a wide potential in helping to understand criminal justice policy. The differences are, for instance, to be found in offence definitions, statistical rules, and political changes. Moreover the data collection for the Sourcebook on the four categories of sanctions/measures (fines, non-custodial sentences, suspended custodial sentences and unsuspended custodial sentences) was sometimes difficult. Attention is paid to the information collected, the comparability and, as an illustration, to three specific offences (completed homicide, rape and all thefts). The conclusion is that wide differences exist in the level of convictions found and the use of sanctions by the courts. Such differences will reflect both different levels of criminality, diversion away from the courts but also different recording practices. However, even with these caveats what is available does provide a useful starting point in identifying countries on which further research may be carried out.     

White-collar criminals--a homogenous offender population? Reflections on typical and atypical "white-collar criminals"

Little has been written in German scientific literature on the personality structure of white-collar criminals. Often, the relevance of this level of investigation has downright been denied. Conventional psychopathology does not seem to be an appropriate approach to these character problems since there are not only deficits but also competences to be found which are useful while making a professional career. The author points out the inhomogeneity of this offender population and presents a case report of an atypical white-collar criminal. Over and above that, he introduces two psychological concepts which are apt to better describe the peculiarities of these individuals: Machiavellian intelligence is often the core competence when it comes to rising in hierarchies, whereas the newly defined psychopathy concept according to R. D. Hare makes plausible the moral and ethical failure of these offenders in their professional settings.     

The Relationship Between Deprivation and Forensic Material Recovered from Stolen Vehicles: Is it Affected by Vehicle Condition and Tidiness?

Previous research has shown that as crime scene location deprivation increases (lower socioeconomic status), the recovery of forensic material, principally DNA and fingerprints, also increases. However, this increase does not result in more crimes being solved by forensic means. In this study, we analyze stolen vehicle data and find a statistically significant positive association between deprivation and the amount of forensic material that matched either the victim or an associate of the victim on a criminal database. The nature of this association was investigated further by inspecting recovered stolen vehicles to establish whether the condition of a stolen vehicle and the tidiness of its interior influenced the recovery of forensic material that was attributed to the victim or an associate. Contradictory results suggest that other factors may contribute to understanding the association between the recovery of victim- or associate-attributable forensic material and crime scene location deprivation.     

Of Mines,Mining, and Imagining: Rights without Society?

As a polyvocal discipline that integrates studies of law in society, socio-legal studies should have no problem accommodating civil liberties and human rights. Numerous methodologies and frameworks present themselves as illuminating, troubling, and critiquing conceptions and experiences of rights. Legal analysis of human rights is nevertheless often abstract and highly technical. But what if socio-legal analyses of rights were not available? What would be lacking? Using a personal situated methodological approach, I explore the Journal of Law and Society's back catalogue to reflect on what civil liberties and human rights might be without socio-legal studies.     

Victim and Society: Sharing Wrongs, but in Which Roles?

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial.     

The Threat of the Thief: Who Has Normative Influence in Georgian Society?

This piece gives an account of the Georgian government's recent attempts to crackdown on the institution of thieves-in-law [vory-v-zakone] within Georgian society. The events surrounding the problematisation of the thieves-in-law are examined and different answers are offered to the underlying question of the article: what threat does this subversive group pose to the government? It is argued that the vory do not represent a potential criminal revolution but are victims of a resurgent state producing a politics of law that seeks to stamp out subverting influences within society. The thieves' world represents an alternative moral order which is attractive in a country which suffers from acute alienated statehood. Thus the fight against the vory should be understood as a battle to win back the hearts of the Georgian people for the state and for the law.     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills

This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.