The Paradigm of the War on Crime: Legitimating Inhuman Treatment?

Since 11 September 2001, a new paradigm has developed in criminallaw. Parallel to the idea of the ‘war on terror’,a paradigm based around ‘war on crime’ has emerged.Inevitably, however, a paradigm of war leads to abandoning scientificapproaches based on a legal-moral vision (crime, guilt and punishment)in favour of a merely pragmatic vision, which associates nationalsecurity with social defence. Based on an unclear concept ofdangerousness, presumed by simple membership in a group labelled‘enemy’, the goal is to neutralize, or even eliminate,the criminal/deviant. When combined with a denial of internationalprotections, deconstructing national criminal law thus runsthe risk of pushing a black hole through the rule of law. Manyhave criticized such a paradigm; however, the author pointsout that the paradigm of the war on crime (and more generallythe war on terror), provided that it respects internationallaw, can be useful, because it shows the need to overcome thebinary opposition between war and peace, as well as betweenwar crimes and ordinary crimes. Nonetheless, it must be clearthat this paradigm can only be one of transition. To overcomethe war–peace dichotomy in a global community and to reconstructthe relationship between terrorism and torture, neither a ‘warcrimes’ nor a ‘war on crime’ paradigm is trulysufficient. Only through the amplification of a paradigm of‘crime against humanity’ (itself unstable and evolvingbut free from the war metaphor) can we reconstruct humanityas a value and make it the cornerstone of any legal system.     

Justifying Age Discrimination

The characteristics of age discrimination as provided for inthe Employment Equality (Age) Discrimination Regulations setit apart from existing anti-discrimination schemes. The ambitof the Regulations is limited to the employment field. Withinthis area, the legislation does not simply seek to identifya characteristic of a specific minority group and then removethat factor from the decision-making process. Instead, workingfrom a quality common to all (age), the Regulations seek onlyto prevent reliance on it for purposes that are ‘illegitimate’or if the consequences of doing so are ‘disproportionate’.This is necessary: first because the Regulations do not seekmerely to protect discrete age groups, and in practice the interestsof persons of different age may well be in conflict; secondlybecause many decision-making criteria that appear objectiveare in substance, age-related. In order to sort ‘bad’discrimination from ‘good’ discrimination a notionof substantive equality must exist. The Regulations themselvesgive little indication of what equality should mean. There isno existing consensus from which the answer can be drawn, andthe rationales that have underpinned previous anti-discriminationlegislation are not easily transposed to age discrimination.The practical application of the justification defence containedin Regulation 3 will shape the substantive meaning of equalityin this area. This article seeks to identify what the properapproach should be to the provisions of Regulation 3, and suggeststhat this should be derived from considerations of transparentdecision-making, and the need to respect the dignity of theindividual.     

Editors' Note

In some languages there is no precise word for any number overfive. Anything from six to a thousand (and beyond) is simply‘a lot’ (or, perhaps, in the case of public transport,‘too many’). Clearly the people who developed suchlanguages did not have capital markets, let alone mathematiciansor accountants. Volumes of new issues in both domestic and internationalmarkets are reaching levels that stretch the imagination ofeven hardened     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

The informed user: a step up from the Clapham Omnibus

In proceedings for infringement of a registered Community design,Lewison J considered who is an ‘informed user’ andwhat is the ‘overall impression’ of a design.     

The Non-Resident Parental Role for Separated Fathers: A Review

Ideas about the role of fathers in the separated family havechanged over the last few decades. The prevalent legal constructof ‘co-parenting’ implies that children should beable to maintain contact with a non-resident parent, usuallythe father, if they wish, except in cases where there has beenabuse or violence. Research in several disciplines has soughtto explain the processes of contact by examining the behaviourof separated fathers, their relationships within the family,and the separated family as a whole. Quantitative studies haveexplored levels of involvement, the father–child relationshipand the inter-parental relationship as factors affecting children’soutcomes, while an expanding body of qualitative work has soughtto map the practice of co-parenting through identifying thediversity of separated parenthood and the perspectives of non-residentfathers in particular. The contributions of these diverse approachesto current debates on non-resident fathers are reviewed in thisarticle.     

Obligations Between Adult Partners: Moving From Form to Function?

It was observed at the end of the twentieth-century that inrelation to family law policy in the UK, the ‘parent-childrelationship was the only clearly ascertainable family relationshipto which legal consequences can be attached’ and it waspredicted that relational obligations between adult partnerswould become individually negotiable. Some considered that whileparenthood would remain subject to normative obligations, thelegal position of married and unmarried couples would be equatedvia the gradual de-regulation of marriage through increasingthe capacity of adults to define the terms of their own relationships.However, recent policy and practice-based developments reveala different picture. The purpose of this article is to considerthe interaction between these mutually informing discoursesand to suggest that rather than developing a more function-basedapproach to the imposition of intra-familial obligations, relationshipstatus continues to carry determinative weight. Particular attentionwill be paid to evolving jurisprudence in the ancillary reliefcontext which has given the fact of marriage, by itself, greaterdistributive consequences on divorce. It will be argued thatcontrary to predictions at the end of the twentieth century,the regulatory gap between married and unmarried relationshipsis becoming wider, and that obligations between parents whichare created by the ‘joint parenting exercise’ arebeing confined, in both arenas, to remedial awards based uponthe disadvantaged economic position of the primary caregiver.     

The Universal Terrorist: The International Community Grappling with a Definition

Steps have been taken on the international level towards determininga widely acceptable definition of terrorism as a basis for internationalconventions. One basic distinction in this context is betweenstate-sponsored ‘official’ terrorism and individualterrorism directed against those in power. With respect to ‘individual’terrorism, a widely accepted definition refers to acts or threatsof violence committed with the intention to intimidate a populationin furtherance of some non-economic goal. The old problem ofdistinguishing terrorists from legitimate freedom fighters hasbeen alleviated but not yet totally resolved. Another issueconcerns the question of whether to exempt actions of and/ordirected against armed forces from the definition of terrorism.Overbreadth rather than vagueness is a problem of many currentdefinitions of terrorism: since they include as ‘baseoffences’ less serious violations of individual or communalinterests and even the mere intention or threat to commit them,they fail to reserve the stigma of terrorism to those offencesthat truly threaten the social fabric.     

Diego Garcia: British-American Legal Black Hole in the Indian Ocean?

Environmental risks from US military construction on the atollof Diego Garcia (British Indian Ocean Territory) since 1971include damage caused by large-scale ‘coral mining’,the introduction of invasive alien plant species, continuoustransits of nuclear material and unreported major fuel spills;these risks are now compounded by those of sea-level rise andocean acidification due to global climate change. The US andUK governments have evaded accountability by way of a persistent‘black hole’ strategy, contending that some nationallaws and international treaties for the protection of humanrights and the environment do not apply to the island—aposition confirmed by a controversial appellate judgment ofthe House of Lords in October 2008, essentially relying on ‘prerogative’colonial law. This article draws attention to the fallacy ofthe black-hole syndrome, and to its potentially fatal consequencesfor the British claim to a 200-mile environment protection zonein the Chagos Archipelago.     

The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?

There is an argument in academic circles that the implied dutyof mutual trust and confidence will evolve to form an all-embracingsuper-principle under which each of the more ‘traditional’implied duties will rest, including the employer’s impliedduty to exercise reasonable care for the welfare and well beingof the employee. The theme of this article is that, on balance,there is no evidence for the emergence of the implied duty ofmutual trust and confidence as a super-principle. If anything,the recent trends in the case law emphasise the distinctivenessof the employer’s duties to exercise reasonable care andtrust and confidence. The article’s aim was to demonstratethat both duties are separate, free-standing duties, sittingon an equal plane in terms of importance. To rationalise one,or all of the implied duties (i.e. the duty to exercise reasonablecare and/or all of the other ‘traditional duties’),as one of the means by which the super-principle of trust andconfidence is, or may be expressed, is to a large extent, aspirational.     

From the Contract of Employment to the Personal Work Nexus

This article describes the author’s plans for and designof his research project upon the Personal Work Contracts inEuropean Comparative Law; it seeks consultation with the readershipabout those plans and that design; and it develops two linkedaspects of the theoretical infrastructure for that project,namely the analysis of the ‘family of personal work contracts’and the analysis of the ‘personal work nexus’. Theanalysis in terms of the ‘family of personal work contracts’asserts the validity and utility of the wide and inclusive notionof the ‘personal work contract’ as a central organisingcategory for individual employment law and of a multi-dimensionalway of viewing and understanding this category as a family ofcontracts within which the contract of employment is of courseimportant but is not an over-dominant paradigm. The analysisin terms of the ‘personal work nexus’ argues thatthe contracts within this ‘family of personal work contracts’may be better understood if they are placed in the explanatoryframework of the ‘personal work nexus’, which isa concept of a yet looser and more comprehensive set of legallinks or connections within which personal work relations maybe cast. Ways are suggested in which these analyses may contributeto the better meeting of the regulatory needs of personal workrelations and in which those analyses might be refined and testedby means of a European comparative methodology.     

The spy who came in from the cold

Some words occur to us in pairs, often to the extent that wefind it difficult to hear the one without recalling the other.Thus ‘Romeo’ suggests ‘Juliet’; ‘Anthony’invokes ‘Cleopatra’; ‘Héloïse’follows ‘Abélard’ and so on. Many furtherexamples exist, particularly in the case of lovers. In intellectual property circles the concepts of ‘author’and ‘royalties’ are also closely linked—buttheir relationship is strained. While the author's love forroyalties is sincere and undiminished     

Fit and proper

The current trend of regulation in international financial mattersof service providers and trustees is an inevitable consequenceof trustees of international trusts being remote from the settlorand the beneficiaries. The ‘fit and proper’ persons'requirement for international trust companies, and others, properlyaddresses the need for international investors’ assetsto be in the hands of those properly experienced and qualified.The success depends upon how this ‘fit and proper’criteria is defined and monitored by the regulator in each jurisdiction. In most international jurisdictions,     

Trustees beware: submit with care

The Royal Court of Jersey has recently heard an interestingapplication reported in Jersey as In the Matter of CI Law TrusteesLimited and Folio Trust Company Limited as Trustees of the FountainTrust [2005 JRC099]. The case concerned an application for directions by CI Law TrusteesLimited (the ‘Trustee’) seeking directions as tohow to respond to a judgement of the Family Division of theHigh Court of Justice in England and Wales setting aside a Jerseylaw trust (the ‘Trust’) as a sham, and orderingthe Trustee to transfer the Trust assets to the petitioner inthe English matrimonial proceedings (the ‘Wife’).     

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?

The nature of command responsibility is still open to debatein international criminal law: is a superior to be held criminallyresponsible for the crimes committed by his subordinates ‘asan accomplice’, for having participated in the commissionof the crime by omission, or as a perpetrator of a separateoffence of dereliction of duty? This article surveys the post-WW2case law and the first international instruments on this point,and then analyses the jurisprudence of the International CriminalTribunal for the former Yugoslavia (ICTY). The judges appearto have recently adopted a new approach to Article 7(3) ICTYSt.in that the superior is held responsible ‘for failureto prevent or punish with regard to the crimes of the subordinate’and no longer ‘for the crimes of his subordinates’.It is a responsibility ‘sui generis’ indeed, wherethe crime of the subordinate plays a central role in the attributionof responsibility to the superior. It is, therefore, necessaryto carefully consider the relationship between the superior'sfailure to act and the subordinate's crime, both with regardto objective and subjective elements. The same question finallyarises in relation to Article 28 of the Rome Statute, the literalinterpretation of which implies that a superior shall be punishedfor the same crime committed by his subordinates. In order toavoid the risk of holding a person guilty of an offence committedby others in violation of the principle of personal and culpablecriminal responsibility, it is crucial to consider separatelythe different cases of command responsibility, which are basedon distinct objective and subjective requirements.     

Work/Family Policy in France: From State Familialism to State Feminism?

When one looks at the policies that target the relationshipbetween work and family (here labelled ‘work/family policies’),contradictory views come from France. On the one hand, the staterecognition of family interests is very strong, and was initiallyrooted in familialism, an ideology that promotes the familyas an institution, and has often played against women’srights. On the other hand, women’s – and especiallymothers’ – labour force participation has alwaysbeen relatively high compared to other western countries. Toaccount for this ‘French paradox’, this paper putswork/family policies into historical perspective, in order toanalyse them as a mix of policies coming from various publicpolicy institutions (work, education, family). While state familialismhas always been strong in France, it has been challenged andshattered by several social and political trends since the 1960s.Among these is the development of ‘state feminism’,with the creation of governmental bodies endowed with the formalmission of furthering women’s rights. Based on an empiricalstudy of these institutions, this paper shows how they reframedwork/family policy in terms of a policy of equality in employment.     

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’.     

Money and Marriage: Sexually Transmitted Debt in England

In recent years of economic recession, the problems faced byspouses and partners (especially wives) who provide third partyloan security (usually a second mortgage over the family home)for the business debts of their spouse or partner has emergedas an increasing evidence social and legal problem, especiallyin the United Kingdom, and also Australia (where the problemhas become know as ‘sexually transmitted debt’).In this article, the central findings of the first major empiricalstudy of ‘sexually transmitted debt’ are discussed,after first placing the problem in its legal and social context.