The Origins of ‘Alien Status’ in the English Common Law

In his 2001 monograph on Aliens in Medieval Law: The Origins of Modern Citizenship, Dr Keechang Kim suggested that there was no evidence before the late fourteenth century that birth beyond the sea made a person an alien. This article discusses a series of cases heard from the mid-thirteenth century onwards in which tenants pleaded the claimant's birth overseas by way of bar to hereditary claims to land and in which it seems to have been treated as a bar in itself, though one to which the king might grant special exemption. This seems to have remained the position until legislation of 1351 (triggered by doubts about the eligibility of two sons of Edward III born overseas to succeed to the throne) which not only confirmed their eligibility but also made the first general extension of the right to inherit to children born overseas to parents in the king's allegiance.     

Legal Imaginaries and the Anthropocene: ‘Of’ and ‘For’

Law and Critique - This reflection contrasts the dominant imaginary underlying ‘law of the Anthropocene’ with an imaginary reaching towards ‘law/s for the Anthropocene’. It...     

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

‘No banquet can do without liquor’: alcohol counterfeiting in the People’s Republic of China

The illegal trade in alcohol has been an empirical manifestation of organised crime with a very long history; yet, the nature of the illegal trade in alcohol has received relatively limited academic attention in recent years despite the fact that it has been linked with significant tax evasion as well as serious health problems and even deaths. The current article focuses on a specific type associated with the illegal trade in alcohol, the counterfeiting of alcohol in China. The article pays particular attention to the counterfeiting of baijiu - Chinese liquor - in mainland China. The aim of the article is to offer an account of the social organisation of the alcohol counterfeiting business in China by illustrating the counterfeiting process, the actors in the business as well as its possible embeddedness in legal practices, trades and industries. The alcohol counterfeiting business is highly reflective to the market demand and consumer needs. Alcohol counterfeiting in China is characterised primarily by independent actors many of whom are subcontracted to provide commodities and services about the counterfeiting process. The business relies on personal networks – family and extended family members, friends and acquaintances. Relationships between actors in the business are very often based on a customer-supplier relationship or a ‘business-to-business market’. The alcohol counterfeiting business in China highlights the symbiotic relationship between illegal and legal businesses.     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

The Distorted Jurisprudential Discourse of Nazi Law: Uncovering the ‘Rupture Thesis’ in the Anglo-American Legal Academy

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted (mis)representation of Nazi law and how this distortion is manifested within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

‘Sustaining the Character of a Judge’: Conflict within the Legal Thought of British India

Judicial roles provided the raj with major dilemmas. One persistent dispute related to civil servants sitting as judges. Critics argued that civil servants had a superficial legal education and lacked appropriate practical experience of work in the courts. Defenders of their judicial role contended that the best training for judges lay in administrative work on the plains of the sub-continent. Governors-general, viceroys, and others in executive positions claimed that such work provided officials with an understanding of Indian society and that this social knowledge made them effective judges. Professional judges drawn from the ranks of barristers and sitting in the major cities of Calcutta, Bombay and Madras frequently contested this view and the result was sustained disagreement. At the heart of the debate lay competing visions of justice.     

Law’s Determinability: Indeterminacy,Interpretative Authority,and the International Legal System

Netherlands International Law Review - Authority claims remain rooted in the antecedent existence of a degree of indeterminacy, in particular in the international legal system, in which a lack of...     

The ‘unwanteds’ and ‘non-compliants’: ‘unsupported mothers’ as ‘failures’ and agents in Australia’s migrant Holding Centres*

Abstract

Ideas of assimilated citizenship are inherently gendered and during Australia’s post-World War Two migration boom they were deeply and explicitly invested in marriage, children and domesticity. In this period of social conservatism and economic boom, assimilation rhetoric functioned as a reassuring mirror for the host population, promoting the dream of prosperous family life as the ultimate aspiration for refugees and migrants. The role of immigration Holding Centres within this vision was to provide a context in which migrants and refugees could take their first steps towards accomplishing this dream. These Centres of necessary temporary residence were designed as sites of transition towards autonomous, assimilated family life. However, those families headed by single mothers, often referred to in government records as ‘unsupported mothers’, had limited opportunities to live up to such images of assimilation, or even to comply with the economic imperatives of the migration scheme that had brought them to Australia. Based mainly on Department of Immigration records, this article demonstrates that despite recognising the long-term economic and social prospects their children represented, government agencies viewed many unsupported mothers as system failures. They attempted to remedy the situation by turning these women into live-in domestic workers, at times placing pressure on them to institutionalise their children in order to facilitate this, thereby prioritising their compliance with economic imperatives over support for their parenting. Within the limited scope of their agency, unsupported mothers responded by attempting to negotiate the terms of their compliance or simply refusing to comply. For the latter group, Holding Centres became a more permanent home. This permanence is read here as a gendered form of resistance to a system that struggled to foster their economic self-reliance without compromising their capacity to be mothers.     

‘Female Husbands’, Community and Courts in the Eighteenth Century

While there was no specific law prohibiting sex between women in the eighteenth century, some women were prosecuted as a consequence of same-sex relationships. These ‘female husbands’, women who married other women under male identities, often lived highly individual lifestyles; but their path through prosecution and punishment involved a much more intricate web of relations. Thus an exploration of their cases highlights important features of the contemporary criminal justice system as well as popular and elite attitudes to the specific offences. In particular, understandings of the role of the community in the discovery, prosecution, and punishment of criminal offences are complicated by an examination of the female husband cases. In a crucial period of change for the legal system, the complexities of its processes as well as the impact of class, gender, and culture are exposed. Light is shed upon the shifting roles and interests of the individual, the local community, and the courts at a point when criminal cases were in the early stages of a shift from private prosecution and public punishment to greater formality and state control. These unusual cases bring into focus the complex role of community relationships in an evolving legal system.     

The Relationship Between Legal and Non-legal Verses in the Qur’an: An Analytical Study of Three Themes of the Qur’an

The Qur’an is considered by Muslim scholars to be one of the two primary sources of Islamic law. The Qur’an deals with many diverse matters, including beliefs, morals, ethics, legal issues and historical narratives. We are not concerned here with establishing the exact proportion of the Qur’an devoted to each of these various categories and in particular to legal rulings. Rather, the pivotal aim of the present investigation is to establish the fact that the whole Qur’an is interrelated, and that the non-legal material in the Qur’an ultimately supports its legal system. This article, therefore, attempts to contribute to the discussion on this issue by asserting that although a large part of the Qur’an does not contain explicit or even implicit legal rulings, it serves, however, to consolidate and establish the Islamic legal system. This assertion is founded on an analysis of the relationship between the legal verses and those with no direct legal rulings stated in them. This article will broadly assess three major themes in the Qur’an which are: God, the Prophet and His message and the present life with the Hereafter. It will underscore their relationship to explicit legal injunctions. These themes are doctrinal in nature but as the analysis will show, they are woven into the framework of the injunctions themselves thereby forging a link between creed and law.     

The ‘pains’ of electronic monitoring: a slap on the wrist or just as bad as prison?

The purpose of this research is to examine whether inmates that have served electronic monitoring (EM) find it more punitive than offenders that have not served electronic monitoring. We asked a sample of 1194 inmates currently incarcerated in a Midwestern state to estimate exchange rates of electronic monitoring over prison by rating how many months of EM they would serve to avoid 12 months in prison. The results indicate that inmates view EM as less punitive than prison and that monitored offenders find EM more punitive than unmonitored offenders. Additionally, black inmates were more likely to have served EM than white inmates and older inmates find EM more punitive than younger inmates. Previously monitored offenders report that they will be less likely to rely on family and friends upon release from prison. These results suggest that EM is perceived as a punitive sanction by those that have experienced it. Furthermore, racial differences uncovered here may help explain why minorities view alternative sanctions as particularly punitive and may also partially explain why the experience of EM may negatively impact family relationship among those that have served EM.     

The ‘Perils’ of an Identity Politics Approach to the Legal Recognition of Harm

In the past, and it still remains the case, people with learning difficulties who are victims of violence have been cast as being in need of protection rather than rights and justice. Such an approach belies an institutionalised perspective of harm that does not readily engage with criminal justice structures or solutions. At the same time, Sect. 146 of the Criminal Justice Act 2003 gives the court the power to pass enhanced sentences where it can be proven that a crime was motivated by hostility towards someone because s/he is disabled. However, this provision may simply remain a symbolic pledge to equality that fails to tackle the complex and deep rooted causes of violence and oppression in modern society. The consequences of automatically turning to hate crime ‘solutions’ have yet to be explored. This article will draw from the ideas of a number of thinkers in the context of diverse activism to construct a bridge between current debates about how to theorise and tackle violence and oppression in the modern world and the campaigns fought by people with learning difficulties and their supporters. The hope is that this exercise will not only help people with learning difficulties to access the current debate but will further develop current thinking about how to understand and tackle violence in the modern world.