Human and fundamental rights: What are they about?

Conclusion Human rights, distrusted by Bentham, through emergence ofGesellshaft, have sometimes been identified with rights of market men and gradually on an ad hoc basis and so have been given a relational or relativist character for that reason. Such a view ignores the test of humanness or the tele of human rights surviving any political association and the need for full development of human personality as an autonomous being inherent in full respect for all as moral persons. This disposes of the view of human rights in terms of rules of a game, or of connection between human rights and human action, or of the standard of the prudent man or, finally, of the ideology of the rising bourgeoisie. Equally, that very test of humanness disposes of criticisms of the human rights theory based on a concern for implementation of rights, on concentric circles based on the specific and concrete, on the impossibility of liking the billions, on the distinction between negative, positive and administrative rights, on the condition of being able to make valid claims and thereby denying human rights to the deprived millions in poor countries, on the social justice model, on the potential for violence and conflict and, finally, on the vagueness or subjectivity of human rights. An eclectic synthesis not between good and evil nor between right and wrong but between the extremes of the views presented in such critical explanations e.g. between the New Right and the New Left and between Hobbes and Rousseau) is what is needed in order to present a workable theory of human rights in the modern-day world.     

Reflections of the Evolving Concept of 'Private Policing'

Once popular state-centred political frameworks, while declining in popularity on many normative agendas, nevertheless continue to guide how we think about and examine policing. Early studies into the private policing phenomenon have thereby focused upon the formal paid private security sector, a set of agencies which do not depart too radically in appearance from traditional public police services. More recent empirical studies have yielded data inconsistent with the established conceptual frameworks. Theorists have been assembling these data into alternate ways of thinking about collective life, which may have profound implications for the ways in which to choose to govern in the future. Further research addressing developments in networked nodal governance may be suggestive of progressive alternatives.     

Sex @ the End of the Twentieth Century: Some Re-marks on a Minor Jurisprudence

This article offers a re-reading of Goodrichs essay, Law in the Courts of Love. My contention here is that the idiom of love that Goodrich provides us with in this essay cannot address the complexity of sexuality and sexual politics that inhabit our contemporary technoscientific culture. In so doing, I will juxtapose his essay with Laven Berlant and Michael Warners essay, Public Sex. This article will be divided into three sections. In the first section, I will evaluate and review Goodrichs genealogical approach to law and the image of justice that arises out of his approach. The second section will be a re-reading of Goodrichs Law in the Courts of Love through feminist and technoscientific discourses. Its aim is to problematise and re-think not only the idiom of feminine justice that Goodrich offers, but also to question the presuppositions upon which his work is based, primary presuppositions surrounding issues of privacy, sexuality and sexuated rights. Finally, in the third section I will conclude by suggesting that the re-figuration of justice necessitates a re-figuration of the relationship that law has with time and space.     

New voices from the ship of fools

Conventional left accounts of Thatcherism have stressed the authoritarian nature of its political rhetoric. This paper suggests that convergences between the new conservatism and more fundamentalist moral positions, meeting on the ground of obscenity and violence in the media, are a relatively recent development, associated with renewed strategic concentration on the question of law and order. Indeed, the libertarian right, in adhering to a utilitarian laissez-faire understanding of private pleasures, has presided over a positive proliferation of erotic and other gratifications. We argue that in the United Kingdom the authentic constituency of the moral right is an increasingly socially marginal one, rendered progressively more so by the rapid development of technologies of communication and entertainment.     

Recovering the Indigenous Legal Traditions of India: Classical Hindu Law in Practice in Late Medieval Kerala

The collection of Malayalam records entitled Vanjeri Grandhavari, taken from the archives of an important Namputiri Brahmin family and the temple under its leadership, provides some long-awaited information regarding a wide range of legal activities in late medieval Kerala. The organization of law and the jurisprudence represented by these records bear an unmistakable similarity to legal ideas found in dharmastra texts. A thorough comparison of the records and relevant dharma texts shows that landholding Namputiri Brahmins, who possessed enormous political and economic power in the region, mediated the implementation of dharmastra into the legal system. From this comparison arise new understandings of law and legal categories such as custom and positive law. Moreover, such comparisons begin to elucidate the problems involved in Western assumptions that it is textual law, not its interpretation and application by humans, which controls behavior. The Vanjeri records demonstrate not only the importance of dharmastra as a historical document but also the manner and extent to which dharmastra provided the foundation for legal systems in Kerala as well as in other regions of India.     

Competitive Distortions in EU Environmental Legislation: Inefficiency versus Inequity

In the European Union a number of emission standards for stationary sources have been harmonised. For many years the legal basis has been article 100 EEC (renumbered as article 94 by the Amsterdam Treaty), which calls for harmonisation to eliminate and prevent distortions of competition in the common market. In the paper, two views of distortion of competition are distinguished: either as an inefficiency in the allocation of resources or as an inequity of starting conditions. At first sight, the inequity interpretation seems to have been the primary motive for harmonising source emission standards. However, a closer investigation reveals that actual harmonisation policies also partly reflect the inefficiency view. Implicitly, the harmonisation policies of the EU may trade off efficiency and equity.     

Law,fact and legal language

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure brute facts do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on applicability rules. The problem of mixed terms is partly a matter of judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders.     

Formal Legal Truth and Substantive Truth in Judicial Fact-Finding -- Their Justified Divergence in some Particular Cases

Truth is a fundamental objective of adjudicative processes; ideally, substantive as distinct from formal legal truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. Jury nullification and jury equity. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.     

Chicano youth gangs and crime: the creation of a moral panic

The relationship between Chicano gangs, crime, the police, and the Chicano community is complex. Neither the problem of youth gangs nor the specialized police units created to cope with this problem arises in a social vacuum. Rather, both emerge from a particular historical structuring of social, economic, and political relations. This paper investigates how and why a moral panic arose concerning Chicano youth gangs in Phoenix in the late 1970s and early 1980s. A variety of qualitative and quantitative data from media reports, interviews, and juvenile court records are used to assess whether it was the actual behavior of Chicano youths or the social imagery surrounding them that formed the basis for the gang problem in Phoenix. I suggest that the image of gangs, and especially of Chicano gangs, as violent converged with that of Mexicans and Chicanos as different to create the threat of disorder. In addition, it was in the interests of the police department to discover the gang problem and build an even greater sense of threat so as to acquire federal funding of a specialized unit.     

The Criminological Enterprise in Europe and the United States: A Contextual Exploration

European criminology obviously means more than simply the collaborative efforts (on drugs, restorative justice, youth gangs) between researchers and scholars from Europe. In this essay, the author compares and contrasts American criminology with criminology in Europe (as it exists in individual countries), without aiming for the essence of European criminology. She points to differences between the US and Europe with regard to the criminological enterprise (such as history, scale, degree of institutionalisation, accessibility, diversity in theory and method, the critical and self-reflexive stance, and focal research questions), and to the differences in doing science, doing justice, and doing crime. American criminology is a powerful influence in Europe, although there may be a tendency to overestimate the importance of American criminology, because of the dominance of English-language publications. American criminology has made many positive contributions to the field of the study of law, crime and social control, and it continues to do so. However, if one defines the essence of American criminology as being policy-oriented, methodologically-driven, and lacking theoretical lustre, diversity, and critical edge, then the fear of Americanisation of European criminology is well-placed. It is not the criminological enterprise of the US per se, but rather the notion of Americanisation which is really at issue here.     

When Manu met Mahāsammata

Conclusions When Manu met MS is a story told to explain the origins of the dhammathats. This is where the text came from implies the corollary ... and that is why we must obey the contents of the text. The special feature of this story, which rendered it unsuitable for inclusion in our Postcanonical Adventures survey, is that MS shares equal billing with Manu. The legitimation of law is such a heavy task that it requires the combined efforts of two culture heroes. Forchhammer and Lingat recognised the strangeness of this shared responsibility and interpreted it in terms of sources. Putting their shared position in colloquial language:     

‘Women’ Detectives and Perceptions of ‘Oppressive’ Experiences: Exploring Experiential Essentialism and Phenomenology

The purpose of this paper is toexplore whether female Detectives perceptionsof their own work experiences include oppressive experiences because of their sex. It attempts to evaluate these perceptions ofoppressive work experiences or lack thereofvia a feminist viewpoint that embraces variousaspects of phenomenology with regards towomens experiences. More importantly, itrecognizes that experiential essentialistarguments cannot be ignored. The word womanis in quotes because it has been used,historically and presently, as a category toposition females according to mainstreamsocietys standards. The word oppressive isin quotes because even though the researcherdescribed oppressive instances in specificways, there were times, where some subjects didnot identify those experiences asoppressive. The majority of 60 female CanadianDetectives identified oppressive experiences,and an important task of this paper is toexamine experiences that fit the researchersdefinition but were not considered oppressiveby the subjects.     

‘Full’ Compensation Criteria: An Enquiry into Relative Merits

The principle of full compensation is said to restore the victim of an accident to the position he was in before the tort. The conventional pre-tort position of the victim is taken to be the one in which he bears no accident losses at all. Therefore, a negligent injurer is required to compensate his victim fully. In an interesting paper in this journal, Van Wijck and Winters (2001) have reinterpreted the pre-tort position of the victim, and proposed an alternative specification of liability for the purpose of compensation. We study the relative merits of the two compensation criteria. We show that while the alternative compensation criterion is indeed insightful from economic as well as legal point of view, at the same time it suffers from some serious limitations.     

Trampling Human Rights in the War on Terror: Implications to the Sociology of Denial

Critical criminology has greatly benefited fromthe concept of moral panic, which is a helpfulframework for understanding immigrationreform and the treatment of immigrants –especially in relation to concerns aboutterrorism. In response to the events ofSeptember 11, 2001, the United Statesgovernment swiftly produced legislationintended to protect homeland security,culminating in the USA Patriot Act. Whilemainstream political leaders supported the newlaw, many legal experts expressed concernsabout its expansive powers as serious dangersto immigrants rights and civil liberties.Among those concerns are controversial tacticsinvolving ethnic profiling, detentions, andgovernment secrecy. This article examinescritically the nature of those forms of humanrights violations while elaborating on thecontradictions in the war on terror. ApplyingCohens sociology of denial – how literal,interpretive, and implicatory denial perpetuatelong-term social problems – developments areinterpreted conceptually, contributing to adeeper understanding of growing threats tohuman rights.     

Governmentality and the War on Terror: FBI Project Carnivore and the Diffusion of Disciplinary Power

Social control capabilities have increased significantly over the past several decades, particularly because of an increased utilization of technologically advanced surveillance methods. Following the tragic events of September 11,2001, U.S. Congress and the present Administration have granted law enforcement considerable new powers in the enforcement and prevention of terrorism-related crime. Collectively labeled under the heading of the so-called war on terror , the scope of such laws, policies and directives are challenged by civil rights organizations and numerous legislators for lack of definitional precision, arbitrary application of sanctions, and violation of privacy laws. One of federal law enforcements surveillance tools is Project Carnivore, a Justice Department Internet surveillance program that is administered by the Federal Bureau of Investigation (FBI) to access information flowing to and from a central processing unit on a network connection. While, theoretically relying on Michel Foucaults theory of discipline and governmentality, as well as related insights in the social control literature, this paper examines Project Carnivore relative to the larger context of state rationality and related privacy issues.     

Social control: analytical tool or analytical quagmire?

Conclusion In this paper we have undertaken what we regard as a preliminary critique of the concept of social control and its utility for a critical criminology in Canada. In tracing its emergence and historical development as a key concept in American sociology, we have illustrated that its ascendancy represented a victory for liberal sociology. The recent attempts by critical criminologists and sociologists to rehabilitate the concept of social control by insisting upon the essentially coercive nature of control have not resulted in an advance over traditional theorizing.By examining the women, law and social control literature, in particular the use of the formal/informal dichotomy, we have attempted to illustrate the limited utility of the concept for developing an historically and theoretically informed understanding of the complex and contradictory relationship of women to the state and law. The concept of social control is ahistorical: when coupled with law, moreover, it lends itself to instrumentalism. It is our view that the concept of social control ought to be abandoned by critical scholars in favour of one attentive to the dynamic complexity of history, struggle and change.Paper presented at the Annual Meeting of the Canadian Association of Sociology and Anthropology, 4–7 June 1986, Winnipeg, Manitoba. Equal authorship.     

Questioning Appeals to Community within Crime Prevention and Control

This article casts a critical eye over some of the (often ignored) assumptions which underlie recent appeals to community in crime prevention and control. The article considers the philosophical origins, ambiguities and tensions within such appeals. In so doing, it draws explicitly upon the growth of community safety and to a lesser extent restorative justice in Britain and considers some of the implications to which this shift may give rise. In particular, it focuses upon the manner in which appeals to community converge and collide with changing social relations which may undermine their progressive potential. Specific attention is given to the implications of: increasing social and spatial dislocation; the commodification of security; and policy debates about a growing underclass. It is argued that there is much confusion as to how, and to what extent, communities can contribute to the construction of social order. Within the dynamics of community safety and crime control practices there are dangers that security differentials may become increasingly significant characteristics of wealth and status with implications for social exclusion. This questions the extent to which crime is an appropriate vehicle around which to (re)construct open and tolerant communities.     

Rendition/Eviction – A Post-Apartheid Reflection

The article analyzes the internal logic of the conceptual and structural hierarchies involved in slavery and apartheid land law. The rendition or recovery of fugitive slaves and the eviction of squatters from land during apartheid both involve the use of legal procedures and institutions to protect property interests. However, in the period following the emancipation of slaves and the abolition of apartheid, this logic was not abandoned – liberty was acquired at the price of economic subjugation. The new forms of slavery will continue unless the abolition of slavery and the termination of apartheid are explicitly celebrated as political acts that replace the urge to dominate and possess with a measure of public-spiritedness and non-possessiveness. Politics can be kept alive only when the compelling logic of domination and hierarchy is resisted through a different, public-spirited rendition of eviction.Paper read at the Critical Legal Conference 2003, entitled Transition and Transformation; Resistances and Reconciliation; Communities Within and Beyond Law, Johannesburg, 5–7 September 2003. Thanks to Gerhard du Toit and Maartje Eefting for research assistance. Peter Fitzpatrick (No Higher Duty: Mabo and the Failure of Legal Foundation, Law & Critique, 13 (2002), 233–252) and Frank I. Michelman (The Bill of Rights, the Common Law, and the Freedom-Friendly State, paper read at the University of Miami, 21–22 March 2003, published version forthcoming) inspired some of the ideas worked out here. Thanks to Frank Michelman for permission to refer to his unpublished article, and for helpful comments on a draft of this article.