Violence in Fascist Criminal Law Discourse: War, Repression and Anti-Democracy

This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal law is particularly significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today.     

对马克思恩格斯关于犯罪问题论述的新解读

本文突破刑法理论界对马克思、恩格斯关于犯罪问题论述的通说观点,结合特定的历史条件,对马克思、恩格斯关于犯罪问题的论述进行了新的探讨：（1）恩格斯在《英国工人阶级的状况》中封犯罪的阐述,是从无产阶级成长的过程角度来评析,犯罪是工人早期用来反抗资本压迫的行为方式,旨在分析资本的残酷剥削和压迫是产生犯罪的原因;（2）马克思、恩格斯在《德意志意识形态》有关对犯罪的论述,是从政治的角度封犯罪本质的揭示,即反抗统治关系的斗争,并非从刑法学意义上对犯罪概念的界定。     

The roots of Russian organized crime: from old-fashioned professionals to the organized criminal groups of today

This study focuses on the development of persons and organizations in the successor states of the Soviet Union, with an emphasis on Russia. It examines the development of criminal professionalism in Russia between the seventeenth and nineteenth centuries and argues that exiling peasants to Siberia contributed to the development of a criminal underworld and the creation of a professional criminal underclass. In the early to late Soviet periods, vory v zakone, or “thieves-in-law,” evolved together with criminal groups as a means to survive in the GULAG, these criminal groups operating within the Soviet prisons and penal colonies. Inadequacies of the Soviet system of central planning led to the criminalization of the Soviet economy and the emergence of the thieves-in-law as critical players. Activities such as racketeering, robbery, and other crimes were dangerous but predominantly secondary. The roots of the Russian mafia lie in the innermost depths of the Russian shadow economy. Some of the key aspects of the post-Soviet privatization process are analyzed together with the interaction between various levels of the Russian government and organized crime groups. It is argued that the state was not corrupted by organized crime groups, but rather the organized crime groups became the state. In the new Russia, organized crime groups and corrupt government executives work together to generatea new criminal state.     

The politics of Premenstrual Syndrome: Implications for feminist justice

Recently, there has been a number of criminal cases where Premenstrual Syndrome (PMS) has been recognized as a mitigating factor in the commission of crime. In the wake of these cases, feminists are divided on the question of whether the use of PMS as defense or as a consideration during sentencing is in the best interests of women. In this paper, Kendall overviews controversies surrounding PMS as a construct which reflects the experiences of women. Deconstructing PMS in order to reveal its political origins within medical discourse, the author argues that the introduction of PMS into legal discourse will only serve to further disadvantage women. She argues for the development of an alternative and potentially subversive discourse about PMS which reflects women's experiences, but which relocates women's bodies within their social, political, and economic context.     

The Dark Glory of Criminals: Notes on the Iconic Imagination of the Multitudes

This article explores the relationships between crime, collective responses to it, and the social production of so-called great criminals. It argues that crime, especially sexual and violent crime, produces significant imbalances in individuals habitually subject to instrumental actions, identitarian thinking and positive law. These imbalances are emotional as well as cognitive and, under certain conditions of communication, can generate states of multitude, that is, collective states linked to an intense affectivity and to the prevalence of mythic or symbolic thinking. These states reach their limits and become condensed in the mytho-historical figure of the great criminal. In this sense, great criminals are a function of such multitudinous states: points of imputation that concentrate and catalyze the affective imagination unleashed by collective effervescence.     

刑事法治建设与刑法学研究的新发展

2007年,以刑事法治理念为指导,以新刑法典颁行十周年为契机,我国刑法学界继往开来,不仅对刑法的发展方向、宽严相济刑事政策、犯罪构成体系、死刑制度改革、《刑法修正案(六)》等刑事法治领域中的重大实践与理论问题展开了深入研究,而且还对单位犯罪、电脑量刑、网络犯罪、侵犯著作权犯罪、贿赂犯罪等问题及外向型刑法的相关问题进行了深入研讨,成果斐然。     

Criminal justice policy and the psychology of peacemaking

Psychology which once was a primary influence on the development of criminal justice policy has, in recent decades, lost much of its ability to inform how laws and policies are made that concern punishment and social control. The reason for psychology's loss of inluence can be traced to the war on crime political rhetoric adopted by politicians and criminal justice administrators. This paper argues that an emerging peacemaking perspective in the criminal justice system allows the discipline of psychology to once again inform the discourse on criminal justice policy. Issues such as drug abuse, gun control, and capital punishment are appropriate subjects for a psychological perspective in the national debate on criminal justice policy.     

Swedish crime scene technicians: facilitations,epistemic frictions and professionalization from the outside

ABSTRACT

This article investigates the role of crime scene technicians in the Swedish criminal justice system, and particularly how Swedish crime scene technicians not only examine crime scenes but also facilitate the criminal justice system’s joint production of forensic evidence. It proposes thinking about the criminal justice system as a conglomeration of epistemic cultures, that is, of communities with different ways of producing and understanding forensic evidence. Such a perspective makes it possible to understand interprofessional frictions as epistemic frictions as well as to draw attention to the facilitations, mediations and translations that crime scene technicians perform. This perspective also makes it possible to illuminate how the crime scene technicians’ professionalization – a professionalization from the outside – affects both their future crime scene work and their facilitations.     

关于中国刑法学理论体系起点问题的思考

科学、理性的理论体系应当是一种体系性、逻辑性思考的结果。在体系性思考中,思考和选择一个恰当的体系起点,是理论体系科学化和理性化的基础性工作。传统的以社会危害性为起点的理论体系已经不能很好地符合中国法治的发展要求和刑法学体系发展的需要,而以刑罚目的为起点的刑法学体系强调刑法的理性运作和规范性特征,其基本逻辑关系表现为:通过证明刑罚目的的正当性和合理性来证明刑罚的正当性和合理性;通过证明刑罚的正当性和合理性来证明规定犯罪的正当性和合理性。在这个逻辑结构中,刑罚目的的选择是刑法学体系的核心。     

Chinese organized crime and situational context: comparing human smuggling and synthetic drugs trafficking

This article criticizes the ‘ethnic’ conception of organized crime and puts forward an alternative view that does not put ethnicity first, but rather social networks and situational context. It focuses upon Chinese organized crime, a phenomenon where the preoccupation with ethnicity is paramount, and compares findings from extensive research into two different transnational criminal activities that are carried out by Chinese offenders in the Netherlands. The first topic, human smuggling, is well researched, whereas research into the second topic, trafficking in precursors (the basic ingredients for the production of synthetic drugs), is largely lacking. The article highlights the major theoretical and empirical similarities and differences between these two criminal activities and discusses the relevance of the main findings for theory and research.     

共犯处罚根据论的反思与修正:新混合惹起说的提出

混合惹起说虽然是共犯处罚根据论的通说,但是其最大不足在于,无法有效应对新型网络共同犯罪。造成这种问题的根本原因是,混合惹起说以限制从属性说作为理论基础,主张只有犯罪结果对正犯与共犯而言均具有违法性,才可能处罚共犯。然而,既然共同犯罪的本质是行为的共同而非犯罪的共同,成立共犯理应只需从属于正犯的实行行为,而且,对正犯的违法性评价未必连带作用于共犯,因而可以采取最小从属性说,无须采取限制从属性说。如此,就需要对混合惹起说进行修正:处罚共犯,只要求犯罪结果对共犯而言具有违法性即可,无需对正犯也具有违法性。这样既可以有效地应对新型网络共同犯罪等问题,也可以对共犯故意创造"利益冲突状态"的行为作出准确评价。     

“Scared Straight”: Ideology and the media

One of the more widely publicized presentations about crime is “Scared Straight,” a documentary about a program in which juveniles visit inmates in a New Jersey penitentiary. It is the contention of this article that this film and the accompanying media coverage of it convey an ideology message concerning crime and criminals. Crime is presented as a matter of individual choice that has little relationship to any social variables. Criminals are portrayed in a one-dimensional manner as evil, vicious, and barely human. The documentary is a success because these images of crime and criminals conform to existing stereotypes. Based on these distorted images, the film and media coverage “market” a simplistic solution to crime that is compatible with their presentation of the crime problem.     

论受贿罪中的“为他人谋取利益”

在刑法理论界中,“为他人谋取利益”在受贿罪的犯罪构成中的地位—直有争议。本文认为将“为他人谋取利益”作为受贿罪的认定要件之一,这种立法形式对于预防和打击贿赂犯罪极为不力,与受贿罪的本质不相符合,因此应当将此要件从法条中去除。     

Restructuring Justice in Russia: A New Era of Challenges

This paper reviews the criminal justice system in Russia from historical and contemporary perspectives. The realities of greater liberalization and the dissolution of the Central Soviet Government will have a significant impact of the future criminal justice program. Based on a criminal justice delegation including meetings with Soviet criminal justice participants, it is argued that the Soviet will likely lean toward incorporating a more continental crime reduction ideology instead of a Western-style Common Law that emphasizes legal process rather than crime reduction.     

Do cities influence co-offending?

The nexus between urbanity and crime is interpreted as being congruent with either social breakdown or subculture theory. Each of these perspectives offers differing conceptualizations of the causal mechanisms responsible for this linkage, but adjudicating between them has proven exceedingly difficult because their respective predictions are similar. Each theory posits that an urban environment amplifies criminal activity. Using data derived from the FBI's National Incident-Based Reporting System (NIBRS), this study contributes to the literature by investigating whether urbanization influences co-offending behavior. The determination of whether urbanity affects co-offending has theoretical relevance because social breakdown theory argues that urbanity produces interpersonal estrangement that impedes the development of friendship networks needed to facilitate group-based criminal offending. Conversely, subculture theory postulates that an urban environment propagates deviant subcultures that act to engender group-based rather than individualist criminality. Multivariate regression results furnish evidence supporting social breakdown theory by demonstrating that urbanity decreases co-offending behavior.     

Taking crime out of crime business

It is one thing to assert that conventional market analysis is critically useful in understanding criminal enterprise. It is more challenging to suggest that corrupt and compromised legal regulation interacts with other critical market variables to maximise market advantage for crime business in a similar manner to legitimate regulatory forces in their protection and enhancement of legitimate business enterprise. The central argument of this paper is that crime business mirrors other business forms when considered in terms of critical market variables, and that in particular regulatory forces when inverted from their original purposes can influence market conditions in the same ways desired from the legitimate regulatory form. The main research direction deriving from the analysis of regulatory influences over specific criminal enterprises is how do certain critical market forces essentially facilitate criminal enterprise as a market phenomenon. This paper suggests how through comparatively analysing nominated critical market forces in the context of lucrative and recurrent criminal enterprises, common business decision-making may be predicted and thereby controlled beyond a law enforcement paradigm. In fact, the paper argues that when perverted law enforcement regulation operates as an inter-connecting market characteristic then it can have a similar influence over illegitimate enterprise that law enforcement may provide legitimate business.By establishing a richer and more enterprise-oriented understanding of crucial market variables, it becomes possible to refine control strategies at critical entry and exit points in the operation of clandestine crime businesses. The paper will challenge a comparative theorising of what makes crime business a good business, and how normative distinctions between illegitimate markets are made less convincing when positioned against an analysis of the interaction of critical market variables.     

Tough-on-Crime Tolerance: The Cultural Criminalization of Bigotry in the Post-Civil Rights Era

This article extends critical scholarship on the problem of hate crimes in the U.S. into the field of cultural criminology. Highlighting the role cultural production plays in reinforcing identity-based social harms, this study analyzes the cultural construction of the figure of the white hate crimes perpetrator, or “the hater.” The article integrates findings from a comprehensive discourse analysis of major U.S. news sources from 1986 to 2010 with insights from the fields of whiteness studies and critical criminology. The study first finds that the figure of the hater embodies modern day bigotry through terse stereotypes about white poverty, masculinity, hate group membership, and criminality. It then argues that these widely distributed discursive performances create rhetorical opportunities to define bigotry as an individualized problem with law enforcement remedies and to further normalize extreme hate crimes cases. Ultimately, a new theoretical construct, “post-difference ideology,” is mobilized to challenge the hater’s prescribed role as folk devil.     

犯罪理论体系研究论纲

犯罪理论体系是刑法理论体系的基础和核心。犯罪理论体系的形成和发展受到哲学和刑法学派的影响和制约。古典犯罪理论体系、新古典犯罪理论体系和目的主义犯罪理论体系各有优劣 ,中国刑法学者应博采众长、兼收并蓄 ,在继承和借鉴的基础上 ,勇于创新和超越 ,形成中国特色的犯罪理论体系。     

An ounce of prevention...

A major theme in the apparent transformation of the criminal justice system in recent years is the commitment to shifting away from reactive responses to crime in favor of proactive prevention practices. This paper raises the question of whether the rhetoric of prevention has been translated into real substantive changes. The author argues that the activity which has occurred in response to the rhetoric of prevention is more significant as an ideology of practice and control than as a ‘solution’ to the problem of crime. For the moment, it is unlikely that an ounce of prevention will produce more than a few grams of cure.