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.     

Forfeiture and money laundering laws in the United States

Today Europe is faced increasingly with the phenomenon of organized crime, creating problems similar to those the United States faced as early as a decade ago. American forfeiture and money laundering laws provide the state with sweeping powers for use in its efforts to combat organized crime. Although study of these instruments might inspire European lawmakers to adopt similar ones, the instruments themselves carry a societal price tag that cannot be ignored. Classical principles limiting the reach of the criminal law (and the powers of its enforcement apparatus) and in a broader sense the liberal concept of the fragmentary nature of the criminal law have largely been abandoned by lawmakers in the area of organized crime. Thus, modern American forfeiture and money laundering laws have lowered the standards of protection against state intrusion into citizens' basic rights despite the lack of sufficient empirical proof that their investigative and punitive powers are efficient in skimming profits and deterring further crime.     

Does strict judicial scrutiny involve thetu quoque fallacy?

To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute.I show concretely how the Court has erred in specific cases. I also point out how the doctrine of judicial review prevents the Court from availing itself of the remedy that logic would demand.Lastly, I consider the possibility that the Court uses the doctrine of strict scrutiny to strike down legislation that the Court suspects has an impermissible motive. I conclude that if the Court has evidence of an impermissible motive, it could present an inductive argument for such a motive and strike the legislation down for that reason. Using thetu quoque fallacy does not advance the search for the impermissible motive.This paper was read at the American Philosophical Association Central Division Meeting in New Orleans on April 27, 1990.     

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.     

Retributivism,Consequentialism, and the Intrinsic Goodness of Punishment

Retributivism is commonly taken as an alternative to a consequentialist justification of punishment. It has recently been suggested, however, that retributivism can be recast as a consequentialist theory. This suggestion is shown to be untenable. The temptation to advance it is traced to an intrinsic good claim prominent in retributive thinking. This claim is examined, and is argued to be of little help in coping with the difficulties besetting the retributive theory, as well as clashing with a desert claim equally central to that theory.     

Precedent Externality, Network Effect, and the Possible Inefficiency of the Evolution of Laws

Using the traditional scenario of tort conflict as an example, I argue that the marginal precautionary costs of injurers and victims are not constant, as was assumed by most previous researchers. The precedent of a liability rule has some natural externality on the precaution technology, and hence marginal cost, faced by future agents involved in torts. The adoption of legal rules therefore has a network effect, meaning that the present prevalent adoption of one rule increases the probability of its future adoption. Treating the dynamic evolution of legal rules as a random process, we are able to apply an established result in the literature of network economies to conclude the path-dependence, non-predictability, and potential inefficiency concerning the final legal rule to which the dynamics converge.     

Social sciences and the evolving concept of corruption

The term corruptio appears in many languages, but behind it lie several contrasting strands of thought and language. Current political usages of corruptio--emphasizing bribery, which in turn is just one of several families of ideas to which the term has variously been attached--date from the late 18th or early 19th century, have been strongly influenced by Anglo-Saxon legal thought, and may be traced to Roman roots. But French lexicographers developed a richer and more diverse vocabulary to encompass the crimes of civil servants and judges in addition to those of the people who sought to influence them. Religion, and in particular offices within the Church, also strongly influenced the ideas and vocabulary of corruption. Ultimately, corruptio can be said to have Biblical origins and a core meaning centered around injustice. The complexity and richness of the idea of corruption, as viewed from that perspective, in often lost in the narrower and more technical usages that dominate contemporary debate and analysis.     

Selective incapacitation and the Philadelphia cohort data

The University of Pennsylvania study of delinquency in a Philadelphia birth cohort has been described byNewsweek as perhaps the most influential piece of criminal justice research in the last decade (March 23, 1981). Many have construed the findings as showing that, if imprisonment were focused on the minority of offenders with especially bad prognoses, the rate of crime could be reduced substantially. But others have taken the opposite view that the cohort data, far from endorsing such a selective incapacitation strategy, might actually provide strong evidence that such an approach is futile. Through some further analyses of the Philadelphia data, we attempt to clarify their policy implications.     

Expanding coupled shock fronts of urban decay and criminal behavior: How U.S. cities are becoming “hollowed out”

This work attempts to formalize an emerging paradigm in criminology, examining the structural consequences of feedback between community physical decay and behavioral pathologies caused by the social disintegration resulting from that decay. Adaptation of a standard reaction/diffusion approach produces a model of radially expanding coupled traveling-wave shock fronts of interrelated contagious physical decay and criminal activity. The standard threshold theorem associated with the model equations suggests that currently advocated triage policies, which recommend the virtual abandonment of bad communities behind the expanding front, will fail spectacularly. The model suggests that, just as the hollowing-out process has a complex, synergistic and dynamic structure, so, too, must interventions be interactive and mutually reinforcing, adaptively, targeted at communities in all stages of the phenomenon.     

Interviewing Preschoolers: Comparisons Of Yes/No and Wh- Questions

This study investigated the influence of question format on preschool-aged children's errors, their response accuracy, and their tendency to say I don't know when given non-misleading questions in a neutral, unbiased context. Children (3 to 5 years old) participated in a craft-making session that included a staged accident with two experimenters differing in gender and appearance; the environment also had several distinctive features. One week later children were interviewed about actions, participants, and environment; questions were yes/no format with the veridical response yes (yes questions), yes/no format with the veridical response no (no questions), and specific wh- format questions. Question format substantially influenced children's responses: they were most likely to make errors if asked no questions, and were unlikely to answer either yes/no question with I don't know. In contrast, children spontaneously and frequently said I don't know to wh- questions about content they did not recall (environment), but not about content that was well recalled (actions). Implications of question format for reliability of eyewitness testimony by preschoolers are discussed.     

The structure of basic human rights

This paper offers a theory of the structure of basic human rights which is both compatible with and clarificatory of the traditional conception of such rights. A central contention of the theory is that basic rights are structurally different from other kinds of moral rights, such as special rights, because of differences both in the way in which basic rights have content and the model on which basic rights are correlative with duties. This contention is exploited to develop and defend the central thesis of the theory, namely that basic human rights are bundles of mutually held active rights enjoyed by persons in virtue of the specifiable moral relationships they bear to each other.     

Contracts,promises and meaning the question of intent

Conclusion In this article, I have argued against an intentionalistic theory of promises, such as the theory of Searle, and of others inspired by him. Such a theory leads to a one sided approach, and is unable to account for all the phenomena that count as promises. I have argued that in contract law both the promissor and the promissee play a role of importance, but also that the influence of their intentions is rather limited. I have then extrapolated my argument to extralegal promises.In the last section, I have offered some conjectures as to what may have contributed to the intentionalistic aspect of Searle's theory. My last conjecture was that the ambiguity of the word meaning may play a role. Let me end, in all modesty, by offering a suggestion that might help English philosophers in solving the problems of linguistics, and their translators in interpreting their solutions: the introduction of the word speaning for speaker's meaning!     

Social justice and legal justice

The main aim of this paper is to challenge the validity of the distinction between legal justice and social justice. It is argued that what we usually call legal justice is either an application of the more fundamental notion of social justice to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about the proper relationship between these two concepts. Two views about the social justice/legal justice dichotomy are of particular importance and will provide the focus for the argument: this dichotomy is sometimes identified with a classical distinction between distributive and commutative justice and sometimes with the distinction between substantive and procedural justice.     

Comparing the Social Service Utilization, Exposure to Violence, and Trauma Symptomology of Domestic Violence Female “Victims” and Female “Batterers”

Although some authors have suggested that women batterers may really be self-defending victims, to date, no research has been initiated to empirically support this assertion. This paper describes the design and outcomes of a research project that investigated the similarities and differences between women adjudicated as domestic violence batterers and women identified as domestic violence victims. Findings indicated group similarities in the areas of exposure to violence and social service utilization. Although both groups reported high levels of trauma symptomology, victim scores were significantly higher.     

Terrorism and the law: Historical contexts, contemporary dilemmas, and the end(s) of democracy

Recent proposals by the G7 (and Russia) to clamp down on terrorists and terrorism do not define that which is prohibited. Instead, a threat is communicated which in turn allows, among other things, greater attention to be paid officially to camouflage charities and terrorist use of the Internet. Nevertheless, it is somewhat of a truism to note that terrorist violence is ultimately defined or characterized, for purposes of legal prohibition, within a highly politicized atmosphere. Starting with a short summary of anti-terrorist codification efforts made this century, this article examines some of the security interests cited by governments today in their respective struggles against terrorism. More specifically, it is argued that individual perceptions of personal and societal threat are heightened unnecessarily not only by a constant stream of governmental anti-terrorist rhetoric, but further, by an awareness of official and unofficial methods of anti-terrorist surveillance, and the use to which the information so obtained can be put.     

Time-Varying Risk Factors for Reassault Among Batterer Program Participants

This study uses longitudinal data to identify risk markers for reassault among batterer program participants. Data are from 308 men and their partners collected at five, 3-month intervals. Time-varying situational and behavioral risk factors, as well as time-invariant individual characteristics, are examined. The most influential risk markers, in terms of relative risk and level of statistical significance, were time-varying: 2 measures of the man's drunkenness during the follow-up interval in which the reassault occurred (OR: 3.5-16.3; p > .0005). Other included time-varying batterer characteristics had no significant effect on reassault. Two significant time-invariant batterer risk factors were (1) severe psychopathology and (2) a history of non-domestic-violence arrest, both measured at intake. Results suggest that batterers' drinking behavior after program intake may provide an important and easily observed marker for risk of reassault and that prediction of reassault with individual risk factors at program intake remains problematical.     

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.     

The impact of human rights principles on extradition from Canada and the United States: The role of national courts

Conclusion Throughout this article, the primary emphasis has been on how the courts in Canada and the United States have decided to apply international human rights standards, many of which have been incorporated into national constitutions, in extradition cases. The emphasis on national courts reflects the particular North American experience, where only limited jurisdiction in these matters exists in the relevant international forum, the UN Human Rights Committee. Accordingly, resort must be made to domestic constitutional rights.In order to give practical effect to international human rights obligations in Canada and the United States, courts can play a useful role, in addition to the role exercised by the executive branch of government. The ambit of this role depends upon the point at which judicial interference is viewed as necessary to protect fundamental rights and override considerations of international cooperation. In Canada the point has been located where there is a risk of treatment that is simply unacceptable178 or that would shock the conscience. In the United States, courts have in the past demonstrated a degree of willingness to probe into potential violations that would be expected if extradition were to be granted and that would offend a federal court's sense of decency.¹⁸⁰ However, there is dispute about the propriety of this encroachment on the rule of noninquiry. Recently, the pendulum has begun to swing toward applying the rule of noninquiry more stringently and, at present, U.S. courts play a very limited role in examining the motives behind an extradition request and the procedures or punishment that likely await an individual upon return to the requesting state.While there are many differences between the constitutional regimes of protection in Canada and the United States as compared with the multilateral treaty protection of the European Convention, there appear to be a number of parallels in interpretation and application. Continued scrutiny of the jurisprudence from both sides of the Atlantic could benefit each jurisdiction.This article was originally prepared for an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991. The views expressed herein are those of the authors themselves and do not necessarily reflect the position of the Canadian Department of Justice.B.A., University of Winnipeg 1975; LL.B., University of Manitoba 1978; LL.M., University of Toronto 1980.LL.B., University of Manitoba 1980; B.A., University of Manitoba 1986; Dip. Soc. Sci., University of Stockholm 1988; M.A., University of Toronto 1989.     

Distributive Justice and Crime

The heavy concentration of crime on a few areas, and the concentration on the chronically victimised within those areas, together illustrate the gross inequality of the risk of crime victimisation. This inequality also characterises other hazards of life. Criminology has too often reduced the problem of crime to the problem of the offender. Recognising crime hazard as an issue of distributive justice requires a different mind set. The Crime and Disorder Act 1998 recognises the drivers of crime as lying outside criminal justice, but does not put in place a panhazard analysis of the kind required, community safety being presented as a type of crime prevention. Movement towards panhazard thinking may well be somewhat facilitated by the workingthrough of the incorporation of the European Convention on Human Rights, actions flowing from section 17 of the Crime and Disorder Act, and a reconsideration of how emergency services might work.     

Measuring the Convergence/Divergence of “Serious Crime” Arrest Rates for Males and Females: 1960–1995

It is now almost a quarter of a century since Adler (1975) and Simon (1975)stimulated a debate about the convergence of crime rates for men andwomen. The ensuing debate generated literally dozens of papers. Given theexistence of a series that now extends from 1960 to 1995, this papersuggests an appropriate way to examine the convergence hypothesis usingtime series techniques. These techniques take into consideration the effectsof the following factors: (a) random shocks orinnovations, (b) the potentially lasting effects of suchinnovations, and (c) the autocorrelation that time series oftenexhibit. Using time series techniques on annual data, we examine trends inthe arrest rates for males and females for six Part I crimes (homicide,robbery, aggravated assault, burglary, larceny, and motor vehicle theft)for the years 1960 through 1995. We test for convergence, divergence, notrend, and a special condition of equilibrium between series calledcointegration.