European “Freedoms”: A Critical Analysis

Faced with the present migrant crisis and the dismal record of Europe in protecting vulnerable refugees’ and migrants’ rights, what could be the view of the moral philosopher? The contrast between the principles enshrined in the European Charter of Fundamental Rights and the reality of present policies is shocking, but more scrutiny will show that it is the result of a larger trend towards an understanding of freedom mostly in economic terms, at a time when economists such as Amartya Sen have revised their approach to economic growth and prosperity, noting the central role played by a much richer conception of freedom. The paper will scrutinize these inconsistencies and the conception of the person from which they derive and will provide an alternative and more coherent moral vision that could strengthen the legitimacy of the European Charter, at a time of growing dissatisfaction and so-called democratic deficit. Such a vision could help reconnect the Charter with a conception of the human person as in need not solely of passive legal protection, but also of active promotion of her self-respect and capabilities, and of her aspiration to a valuable life.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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WHEN “WHAT WORKS” NEVER DID: DODGING THE “SCARLET M” IN CORRECTIONAL REHABILITATION

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Alcohol and rape: An “economics-of-crime” perspective

Using a panel of state-level data over the years 1982–2000, this study explores the potential relationship between alcohol policy, alcohol consumption, and rape by considering a number of theoretical and methodological issues. First, the potential relationship is examined in the context of an economics-of-crime model, controlling for various deterrence and opportunity cost variables. Second, unlike most studies, consumption of liquor and wine are considered as well as consumption of beer. A third focus is on the potential endogeneity of alcohol consumption. A fourth consideration dictates the focus on rape-rates rather than other violent crime rates. Several studies have discovered a tendency for relatively high alcohol consumption by both offenders and victims. Since rape victims are virtually all female, and at least some alcohol policy variables appear to have differential impacts on females and heavy-drinking males, an examination of policy impacts for rape-rates, unlike other types of violent crime, can suggest the nature of the alcohol-consumption–violence relationship. The empirical results support an “alcohol-increases-potential-victims-vulnerability” hypothesis. In the context of the economic theory of crime, this lowers the expected cost of rape to potential offenders and raises rape-rates. Tests for endogeneity of alcohol consumption and resulting simultaneous equation estimates reinforce this implication because they suggest that potential victims respond to relatively high rape-rates by reducing alcohol consumption.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

“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.