The Value of Quantitative Analysis for a Critical Understanding of Crime and Society

The value of quantitative analysis for a critical understanding of crime and society has often been questioned. This paper joins the debate by reviewing quantitative evidence on key criminological topics: the causes of crime, public opinion on crime, and the operation and impact of the criminal justice system. This evidence highlights the importance of economic deprivation and racial prejudice and discrimination for understanding U.S. crime and justice and points to the ineffectiveness of the nation’s “get tough” approach to crime control. In these ways, quantitative analysis has already bolstered central propositions in critical criminology and promises to continue to do so.     

The Law of Police Entrapment: Critical Evaluation and Policy Analysis

This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the ‘shift of scene’ assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identifiable cases the defendant would have committed a similar offence at a different time and location absent police entrapment. In these cases, entrapment is morally and economically insignificant and hence legitimate. Using probabilistic analysis, the article advances the argument that the ‘shift of scene’ assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendant’s punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a different basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the offence’s harm expectancy, it is justified to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to ‘correct’ exaggerated or undue increases in the defendant’s punishment expectancy.     

Notes of a Lawyer: The Venetian Medallions

I handled the Berezkin case fifteen years ago. It was a boring, trivial affair: a theft is a theft, except that the unusual nature of the stolen object differentiated it somewhat from other, similar cases.     

The Politics of Constitution Making: Transforming Politics into Constitutions

According to our conventional perception of the interrelations between revolutions and constitutions, constitutions perpetuate the interests of the victorious forces of the revolution. This paper analyzes the distinctive character of the revolutions of 1989 in East and Central Europe with respect to their claim to constitutionalism. The main characteristic of these revolutions is the disbelief of their proponents in the postulate of a homogeneous unitary popular will which imposes itself on the society. Intead, two different concepts of civil society have been emerging, both of which can be connected with a more elaborate notion of constitutionalism. Constitutions can be understood as institutional devices which encourage the endurance of their legality without being entirely dependent on either the principle of self-interest or the idea of pre-political consensus.     

The Politics of Hope and the Other-in-the-World: Thinking Exteriority

The paper offers a critical interrogation of the politics of hope in relation to suffering in the world. It begins with a critique of the assumptions and aspirations of ‘philosophies of hope’ that assume a Levinasian responsibility for the suffering-Other. Such approaches to thinking hope reveal an underlying coloniality of ontology, of totality/exteriority, which defines Being and Non-Being, presence and absence, in totality. Consistent with past colonial rationalities, the logics of salvation and rescue define, still, these contemporary envisionings of the ‘white man’s burden’ in relation to the suffering Other. A decolonial ontology of Exteriority, of an incommensurable radical Other-Being against Totality, is instead presented. The focus here shifts from the passive suffering-Other that is the object of rescue, to the Radical Other that is the author of encounter. By returning Exteriority (the Radical Other-in-the-World) to theory and by opening up theory’s locations of enunciation, the implications of responsibility, in thinking hope, become open also to interrogation and vulnerable to unsatisfactory conclusions.     

The Politics of Difference: Statehood and Toleration in a Multicultural World

The author identifies four possible attitudes of tolerance toward groups with different ways of life: resignation, indifference, curiosity and enthusiasm. He explores the potential for these attitudes and concludes by discussing the role of boundaries within communities in modernism and postmodernism. The author is not going to focus on toleration of eccentric or dissident individuals in civil society; he is interested in individual rights primarily when they are exercised in common—in the course of voluntary association or religious worship or cultural elaboration—or when they are claimed by groups on behalf of their members.     

State Politics and the Right to Counsel: A Comparative Analysis

One of the most significant recent developments in the study of crime and justice is the emergence of theoretical explanations for the dramatic changes in criminal justice policy over the past few decades. These theoretical accounts address not only highly visible developments, such as the meteoric rise in incarceration rates, but also less-conspicuous shifts in due process and civil liberties, and they do so by attributing more-repressive policies to the emergence of a political culture that has substantially redefined crime and justice. This article focuses on an important due process issue, the legal representation of indigent defendants in criminal courts. We describe the state of indigent defense policy, particularly structure and funding, across the states in 2002, and analyze variation on two dimensions where states may exercise discretion: the extent to which states assume responsibility for funding services (rather than relying on local governments), and the generosity with which these programs are funded overall. We test hypotheses that link funding for services with the ideology of state political leadership, public values about tolerance and race relations, and states' public welfare policy climates. We find little support for the prediction that a welfare climate shapes more progressive indigent defense policies. However, the results suggest that the racial threat hypothesis helps account for spending on indigent defense, and that Republican control of the statehouse results in the perpetuation of local responsibility for program funding. Normative literature on indigent defense suggests that the patterns we observe may have important consequences for the quality of indigent defense services across states. Further, the findings reported here suggest that the politics of the punitive turn, as it has played out across the states, may be responsible not only for shifts in crime control policy, but for due process policy as well.     

The Politics of Legal Representation: The Influence of Local Politics on the Behavior of Poverty Lawyers

This article explores the influence of local groups on the strategies employed by poverty lawyers in representing clients. Data collected from one suburban legal services program suggest that despite attitudinal predispositions to initiate law reform litigation, poverty lawyers are constrained in their use of social reform strategies by local organizations opposed to such activity. I argue that politics inevitably affect poverty lawyer behavior due to the nature of legal services work and programmatic features of the national Legal Services Corporation. I assess the implications of these findings for federal control of local programs.     

Expert Policy Analysis and Bureaucratic Politics: Searching for the Causes of the 1987 Stock Market Crash

Shortly after the 1987 stock market crash four government agencies published studies analyzing the causes of the crash. Their analyses and explanations were at odds with each other. This article explores how weak theory, the methodological variations, and problem definition fed the political orientations of the agencies and shaped the agencies' analyses. Basically it shows how sophisticated policy analysis can serve political and bureaucratic ends.     

论南海仲裁案的法律与政治——国际批判法学的视角

南海仲裁案深刻地蕴含着法律与政治之间的关系。国际法中的政治主要是指国家政治,即国家根据自身利益和意志而行动。国际法中还存在由超越国家政治的组织来调整国家行为的理想,这种理想属于国际主义。然而在现实中,国际主义往往被国家政治所利用,从而产生了虚假的国际主义。虚假的国际主义是貌似合法但实质上不正当的国家政治。菲律宾、临时仲裁庭和美国、日本都属于虚假的国际主义,分别对应工具的国际主义、错误的国际主义和虚伪的国际主义。国际批判法学揭示了这三者所涉法律背后的政治。     

中国政治发展过程中的“群众”探微

我国民主政治的发展路径与西方国家相比有较大不同,集中表现在“群众”这一过渡环节.从空间角度来说,“群众”无疑彰显了中国的政治特色;从时间角度来看, “群众”既是臣民时代的终结者,同时又叩响了公民时代的大门,其在中国政治发展过程中扮演着过渡者的角色.本文分析了中国政治发展过程中“群众”的政治内涵,探讨了中国特殊的政治演变逻辑,提出了中国政治未来的发展方向.     

诉前自行鉴定行为的法律分析——从建设工程合同欠款纠纷中一方当事人诉前自行委托审计谈起

近年来,在建筑行业的工程建设合同欠款纠纷层出不断.在此类案件中,一方当事人自行委托造价咨询单位对工程竣工结算进行审计的情况时有发生,对于这种诉前自行委托而产生的审计报告在诉讼或仲裁过程中应当如何对待,一直是实务界争议不断的问题.本文从一方当事人诉前自行委托工程造价单位进行审计这一行为的定性入手,进而分析了诉前自行鉴定的结论在诉讼中的法律地位,并对仲裁程序中出现的有关问题进行了讨论.     

Politics and the police in Scotland: The impact of devolution

The creation of a Scottish Parliament and Scottish government in 1999, under the process of devolution within the UK, created a significantly different constitutional and political landscape from that which preceded it. The impact on domestic issues in Scotland, such as policing, has been considerable. This is partly because of new structural arrangements, including the creation of a Justice Minister and a Justice Committee of the Parliament, and partly because of the significance of the law and order agenda within Scottish politics. This paper discusses the impact of these developments on the Scottish police. Analysis focuses on the growing involvement of the Scottish Parliament and Scottish governments in key areas such as constabulary independence, police accountability and the management of police resources. Through this discussion, the paper seeks to make a contribution to the debate about the relationship between the police and politics, and the extent to which policing in Scotland is becoming increasingly politicised.     

The Politics of a European Civil Code

Abstract:  Last year the European Commission published its Action Plan on European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a 'common frame of reference'. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy.