Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis in the concept of ‘conscience’. But ‘conscience’here did not mean primarily either the modern lay idea, or the‘conscience’ of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.     

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.     

强制猥亵妇女罪立法比较和特征分析

我国刑法关于强制亵妇女罪的规定反映了行为的强制性与公然性相统一的特点。体现了刑法的严厉性与宽容性相济的精神。该罪客体是复杂客体。     

劫持航空器罪若干疑难问题研究

在我国刑法中,劫持航空器罪的行为对象主要是民用航空器,但也不排除特定条件下的国家航空器。本罪中的"暴力"是专指对驾驶、操作人员实施袭击或其他身体强制。"胁迫",要求不但能引起对方恐惧,还必须达到足以压制对方反抗程度。"其他行为"是指违背航空器合法控制人的意志且属于暴力、胁迫之外的,使航空器合法控制人不知反抗的行为。行为人只有着手实施了"劫持"行为并实际控制了该航空器的程度,才是犯罪既遂。     

A Tory High Modernism? Grand Plans and Visions of Order in Neoconservative Ontario

Trends toward mass incarceration in the United States and elsewhere raise compelling questions about the social purposes of prisons, and their role in the consolidation (and/or privatization) of the neoconservative state. This article examines two moments of penal reform that were historically distinct, but remarkably similar in their shape and intent. Mike Harris’s Progressive Conservatives won control of Ontario’s provincial government in 1995, and undertook a wide-ranging program of institutional and social restructuring that was intended to transform Canada’s industrial heartland. Penal reform was central to this agenda, but Conservative efforts here were remarkably similar to those 160 years before, when Canada built its first penitentiary. This article compares these two moments of flux using a theoretical framework developed by James Scott. He argues that the grand plans of ‘high modernist’ reformers, while seeking to make society more ‘legible’ and ‘rational’, tend to employ simplifications—especially visually pleasing ones—which obscure and suppress insights that might be gained from the ‘practical knowledge’ of those closer to the ground. They do this at their peril, for grand plans tend to fail for lack of such knowledge. The article argues that Ontario’s experience fits neatly into these categories, except that the aim of reformers here has been to restore an old social order, rather than to build a new one.     

刑罚、行刑法新解

行刑法蕴含了刑罚所没有涵盖的目标与内容。行刑法以刑罚为基础 ,立足于以恶制恶。但刑罚中却推导不出感化和扶助性矫治。矫治注入行刑法是基于刑罚先在的事实 ,它绝不是要制造强制与教育的矛盾 ,而是利用刑罚之外的力量 ,把刑罚负效应降低 ;此外当惩罚、教育立足于保护普通公民的权利时 ,行刑法用受刑人的权利标准把这些法律措施适用控制在合理范围。     

Engendering Imprisonment: The State and Incarcerated Female Subjects in Taiwan

In International feminist perspectives in criminology, Rafter and Heidensohn in International feminist perspectives in criminology: Engendering a discipline. Open University Press, Buckingham, (1995: 4) contended that current mainstream criminology was the most masculine of all social sciences. A look at arguments about penal development confronts us with the fact that most historical studies are not gender-specific. Whether female offenders were victimized or acted as their own agents in the penal institutions can be determined with reference to two considerations: first, women prisoners have persistently been treated differently from their male contemporaries; second, female offenders have typically been burdened with formal penalties and informal gender disciplines as punishments for their wrongdoings. The relationship between women and the state provides some clues regarding how penal institutions, which are authorized to act for the state in imposing penalties, treat female offenders and why women’s imprisonment has taken the forms that are evident historically. This study traces the unique political and social conditions of Taiwan’s history to determine what reformations penal institutions have sought to enforce upon female prisoners and which body-types of female inmates have been ‘docile’, ‘obedient’, and ‘useful’ to the state. From the establishment of women’s care homes and the practice of separating the genders in penal institutions, to the implementation of independent women’s prisons, the state in Taiwan has played a dominant role in penal reforms in various historical contexts. This investigation aims to provide a critical and unique perspective of the penalization of women.     

Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted.     

Penal ideology, sentencing and the legitimacy of trial justice

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the ‘rule of law’. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of ‘justice’ in sociological accounts of the ‘reality’ of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial‘s ‘relevant audience’. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived ‘legitimacy’ of international trial justice.     

Comparing deep-end confinement in England & Wales and Norway

Extreme forms of custody represent the boundary points of state power. The configuration of the most restrictive corners of prison systems, and what goes on within them, is highly instructive in exposing the objectives, limits, and implications of state coercion at its most severe. Based on data collected in England & Wales and Norway, this article has two main aims. The first is to explore the degree to which “deep-end” confinement differs between jurisdictions with different penal philosophies. The second is to understand how the most extreme form of confinement in each jurisdiction differs from the more typical carceral experiences within each system and its overall penal ethos. Empirically, then, the article seeks to shine light into the deepest dominions of both prison systems, illuminating the experiential texture of extreme forms of imprisonment. It concludes by asking what can be inferred about Nordic exceptionalism, and about deep-end confinement more generally, by analyzing these domains.     

The good,the bad,and the (sometimes) ugly truths: American penal goals and perspectives

Conclusion Identifying correctional objectives and evaluative criteria is essential to facilitating smooth operational functioning of the correctional system. Complicating this necessity is the tremendous growth and responsibilities of the correctional system as budgets continue to suffer reductions or stagnations. Traditional evaluative studies producing valuable insights, have yet to, for the most part, move beyond recidivism and incarceration rates as performance indicators. This is due mostly to the fact that criminal justicians — scholars and practitioners — and the general public lack consensus regarding correctional goals. Instead, what we are experiencing is an ambivalence placing an unfair burden upon the correctional system to create and maintain effective rehabilitative programs, devise punitive strategies, and fulfill these countervailing missions with decreased financial resources than in the past (relative to case load). To be sure, wardens and correctional administrators are called upon today to do more with drastically fewer dollars. The correctional system, we argue, given its unique task of incapacitating people, demands that scholars, practitioners, and policymakers combine efforts to develop correctional goals. These goals once defined, however, are not to become fixed static categories. Instead, they must remain flexible and imitate or adapt to social and cultural conditions, which is not to say merely reflect public opinion. Rather, correctional goals must consider legal, normative, and other structural changes affecting the correctional system — as many scholars recognize these variables having greater impact on incarceration (see Christie, 2000; Dilulio, 1993; Garland, 2001). This joint effort should take advantage of research-based knowledge and examples of best practices to identify the good aspects, weed out the bad, and eliminate the ugly in the U.S. penal system. An earlier version of this paper was presented by the first author as part of the Presidential Address to the Southern Criminal Justice Association, September 24, 2003 in Nashville, Tennessee.     

H. L. A. Hart on Legal Obligation*

Abstract. The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non-moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social (customary) rules are considered self-justifying, that is not the case of legal rules. Any analogy between these two types of rules in justifying their implementation by force is deemed wrong.**     

Date-rape-supporting and victim-blaming attitudes among high school students in a multiethnic society: Israel

This study examined the extent to which a multiethnic sample of 900 Israeli high school students supported date-rape and victim-blaming attitudes and the predictors of such support. Findings indicate wide support for stereotypes justifying sexual coercion by time and the location of the date, the victim's behavior, and the minimization of the seriousness of date rape. A regression analysis indicates that students' gender and age are the strongest predictors of rape-tolerant and victim-blaming attitudes. Socioeconomic status and religious orientation explain a small proportion of the variance in the support of such attitudes. By contrast, no significant relationship is indicated with ethnicity. Alternative sex-education and rape-prevention programs must address date-rape and victim-blaming attitudes and make students of both genders aware of various factors that continue to be misread as an invitation to have sex and put them at high risk of experiencing sexual coercion on a date.     

Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State

Existing explanations for historical changes in punishment in Britain have tended to examine the replacement of disorderly prisons and public executions with national penitentiaries from the late eighteenth to the mid‐nineteenth century. Despite their significant contributions to our understanding of how punishments operate in a broader social, political, and economic context, these scholarly accounts have narrowed debate on the mechanisms of penal change to the intentions of penal reformers. This analysis extends this time frame and uses historical data to compare the development of the penitentiary in Britain to its primary, yet less studied, penal substitute, the transportation of felons to America and Australia. In doing so, it provides an alternative explanation for the ascendancy of national penitentiaries. I argue that the development of these penal institutions in Britain was historically made possible by two interdependent sets of changes: (1) changes in the structure and administration of the state's penal apparatus (from decentralized to centralized and patrimonial to bureaucratic); and (2) transformations in popular understandings of the state's power to punish in correspondence with the expansion of a broader and more equal definition of citizenship (democratization). In conclusion, I argue for the value of perspectives on punishment that identify the explicit relationships between state organization and social relations in order to clarify how culture inheres in material conditions to influence specific penal outcomes.     

The costs of class actions: allocation and collective redress in the US experience

Once a preserve of the American legal landscape, the class action device today transcends geographic boundaries. In the past decade, efforts have intensified to establish collective litigation instruments in diverse legal terrains outside the United States—including Europe—often with the common goal of allowing some form of collective legal redress while avoiding perceived disadvantages of class actions in the American experience. Today more than ever, from legislators to litigants to scholars, European reformers face the challenge—and the opportunity—of making fundamental choices about the scope and shape of the collective legal remedies they wish to make available. Choices about the shape of the class action device reflect foundational judgments about the proper allocation of costs, and there is much from the US experience that can inform Europe’s prospective reformers. This article describes the history and current status of class action rules in the US, and then compares class actions and another form of extra-compensatory damages—one type of punitive damages—as means of doing the same thing. Although neither punitive damages of this sort nor class actions generally have traditionally existed in civil law systems, they both—and especially this particular form of punitive damages—can, from an economic view, be made to vindicate the same kind of social cost accounting goals. By considering these legal devices together, we hope to shed light on crucial choices facing Europe as it grapples with how best to provide collective legal redress in light of the lessons of the US experience with class actions.     

Police confirmation of use of force in Australia: ‘To be or not to be?’

Despite significant transgressions during encounters with Indigenous peoples and marginalised groups, all six state police organisations in Australia espouse the principle of minimum force and identify service and crime prevention as paramount in community interaction and intervention. This article offers some insight and perspective of police talk and thinking about the potential use or avoidance of force. The four Victoria Police focus groups, when confronted by the specific police use of force scenario, speak of the adrenalin rush and the need to achieve results, if reasonable and necessary by force, but also of the desire to control the situation and follow proper police procedures. Officers support ‘Safety First’ principles that advocate a cautionary and suspicious approach to the scenario combined with rational and methodical tactics rather than emotional responses. The reflective talk of individual officers about the hypothetical situation parallels actual behaviour when police collectively and visibly confront public disorder. Control and containment of the situation—whether the scenario or a major crowd disturbance—are paramount while time, in the form of acting slowly and adopting a low-key approach, can be seen as assets in achieving objectives. In both the scenario and police planning for collective action, a readiness to threaten force, rather than actually employ it, appears central to police thinking. Police justification of non-coercive tactics in certain situations can be revealing about their thinking processes in justifying force in other circumstances.

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Men’s Partner-Directed Insults and Sexual Coercion in Intimate Relationships

Women who have been sexually coerced by an intimate partner experience many negative health consequences. Recent research has focused on predicting this sexual coercion. In two studies, we investigated the relationship between men’s use of partner-directed insults and sexually coercive behaviors in the context of intimate relationships. Study 1 secured self-reports from 247 men on the Partner-Directed Insults Scale and the Sexual Coercion in Intimate Relationships Scale. Study 2 obtained partner-reports from 378 women on the same measures. Across both studies, results indicate that men’s use of sexually coercive behaviors can be statistically predicted by the frequency and content of the insults that men direct at their intimate partner. Insults derogating a partner’s value as a person and accusing a partner of sexual infidelity were most useful in predicting sexual coercion. The discussion notes limitations of the current research and highlights directions for future research.     

论英美刑法中胁迫的理论基础——兼论对我国胁从犯规定的借鉴意义

胁迫是英美法系刑法中的一个概念,具体是指行为人在受到他人死亡或者严重的身体伤害威胁的情况下被迫实施一定的犯罪行为。胁迫作为一种公认的普通法辩护事由,有其科学合理之处。分析了英美刑法中胁迫的成立条件及其存在的理论根基,并分析了其对我国刑法中胁从犯规定的借鉴意义。     

Defining serial murder: A call for a return to the originalLustmörd

This paper revisits the important task of defining serial murder. A review of the history of the term reveals the use of arbitrary and inconsistent criteria by various researchers, raising serious questions as to their validity and reliability. The need to identify specific elements that distinguish serial homicide from other forms of multiple is underscored. Problems associated with the failure to apply consistent criteria are discussed. It is a contention of this work that there exists an aspect of serial murder—as most researchers intend the term—that is inherently distinctive. A definition of serial murder based upon the primary—and intrinsic—motivation of this kind of offender is offered for consideration.