Criminalizing the State

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing.     

论犯罪化的原则

宪法或者国际条约没有提供过多的显性规定约束刑事立法权,以立法道德的方式存在的隐性立法理性是:伤害原则或者法益保护原则为制约犯罪化的政治原则,其不仅担负着刑罚法规正当化的正面解释功能,而且还应当构成入罪的最低门槛;效用原则、自由主义原则和刑法价值原则,应当作为伦理原则制约着犯罪化。     

Criminalizing white-collar misconduct

In this article we examine three explanations for the differential treatment of white-collar offenders by the legal system: (1) an organizational advantage argument in which offenders in “organizationally shielded” positions receive more lenient treatment, (2) an alternative sanctions argument in which civil sanctions replace criminal sanctions in the response to white-collar crime, and (3) a system capacity argument in which the legal response to white-collar crime is driven primarily by resources and caseload pressures. These three theoretical arguments are tested through an analysis of data on individuals suspected of having committed serious crimes against savings and loan institutions in the 1980s. We seek to determine the factors that influenced prosecutors to file criminal charges against some of these suspects and not others. We conclude that all three models may be limited in their ability to explain low rates of prosecution in cases involving white-collar crimes of the sort examined here, and suggest that these limitations may have to do with the circumscribed levels of analysis at which these explanations have been pitched.     

东京审判与追究侵略之罪责

70年前反法西斯战争胜利,催生了纽伦堡与东京国际审判。取缔战争是这两个国际军事法庭的重要使命;用法律来清算国际罪行,在人类历史上则是第一次。国家是否具有发动战争的权利?侵略行为是否应受到法律的惩治?这在科技先进且摧毁力巨大的现代社会,其实是关乎人类文明能否继续存在的关键问题。东京国际法庭经过审理,最后郑重宣布:侵略战争属于国际罪行;惩治侵略行为已成为一条国际法准则。东京审判为维护世界和平做出了贡献,它是中国、日本乃至全人类的一份宝贵遗产。     

论考试舞弊犯罪化的根据

考试舞弊现象呈高发态势且屡禁不止,已成为一种社会流弊,极大地损害了考试的信誉,破坏了公平竞争的原则,影响到学风乃至社会风气.无论从其危害性上分析还是从我国的历史经验上考察,均应当将之予以犯罪化.     

醉酒驾驶行为入罪论

为了应对醉酒驾驶行为给公共安全(交通运输安全)带来的潜在危险,有人提出对酒后驾驶行为入罪的立法建议,将酒后驾驶行为一律入罪;那么,对酒后驾驶行为,《刑法》是否有必要在实害结果发生前提前介入呢?值得我们探究。笔者从先行立法对酒后驾驶行为存的在缺陷入手,通过立法建议的必要性与可行性分析,认为《刑法》对酒后驾驶行为进行规制具有重大的理论意义和实践意义。     

Criminalizing the Political in a Digital Age

Critical Criminology - There is an emergent interest by criminologists in theorising problems that arise when states breach conventional legal norms. This article considers the criminalisation of...     

论虚假公证行为的入罪化

公证作为一项预防性的法律制度,我国在建国初期即已建立。1996年,我国颁布了《公证法》,取代了1982年的《公证暂行条例》。《公证法》构筑了我国公证制度的基本框架,初步确立了公证机构和公证人员进行虚假公证行为的民事、行政制裁体系。与此相对,虚假公证的刑事制裁规范仍是目前缺失的一环,而西安“宝马”彩票案等虚假公证有关案件的发生,更凸显了深入思索此类行为人罪化的必要性和紧迫性。     

Criminalizing Behaviour to Protect Human Dignity

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of ??human dignity as an objective value?? and the assumption that the meaning of human dignity can be explained by referring to Kant??s moral philosophy, human dignity violations are characterized as severe humiliations.     

Criminalizing Complicity: A Comparative Analysis

The Rome Statute's provision on complicity is remarkably vaguegiven the significance of the issue in international criminallaw. In search of guidance, this article takes a closer lookat the models for accomplice liability in domestic criminallaw, focusing on two systems that may be taken as representativesof the civil law and common law world, respectively: Germanand American criminal law.     

赌博罪的犯罪化与非犯罪化之三论

我国刑法中的赌博罪在立法上存在诸多问题。但此类问题皆以赌博罪之犯罪化或非犯罪化为大前提。在犯罪化与非犯罪化之基本理念上,我国刑法应选非犯罪化的刑事政策,同时兼顾犯罪化的立场;在赌博罪的犯罪化之问题上,我国刑法应坚持犯罪化的选择;在普通赌博罪之犯罪化的问题上,我国刑法应坚持非犯罪化的立场,不宜增设普通赌博罪。     

刑事政策视野中的婚内强奸犯罪化

本文评析了婚内强奸犯罪化的学术之争 ,对婚内强奸进行了刑事政策分析 ,设计了婚内强奸的刑事政策反应体系 ,主张对婚内强奸提高刑法反应的门槛、降低刑法反应强度 ,并通过“适用解释上的犯罪化”而非“立法上的犯罪化”的方式 ,对分居或诉请离婚期间发生的婚内强奸行为予以犯罪化。     

Necroethics of Terrorism

This essay is an attempt to begin to think through the complex interlacing of Levinasian ethics, violence, terror and war. The question driving this essay is: in the midst of the harrowing debris of body parts that followed the synchronised explosions of bombs in a number of London train carriages and a bus, what can possibly remain of the ethical? This question will be examined in the context of what remains unspeakable in the face of such acts of violence. Framed by the authorising rubric of declarations of law—as ‘that which speaks in the language of legislation and promises certainty in the anxious aftermath of the loss of certainty’, and the attendant concerns with the question of the ‘enemy’ (as clandestine operative of terror and as object of fantasies)—this essay seeks to examine the ‘unspeakable remainder’ of declarations of law, as that which unsettles (legislated) promises of certainty in the anxious aftermath of a terrorist explosion and its ongoing trauma. In the course of this essay, I proceed to think through the contentious relation between violence and ethics in the context of a Levinasian framework, arguing for a Levinas that challenges and unsettles pietistic views of his ethical philosophy. In deploying the neologism necroethics, I attempt to examine anachronic and necrological violence and its relation to the ethical injunction to own responsibility for the dead.     

Terrorism in India as a Determinant of Terrorism in Pakistan

Terrorism in Pakistan springs from many factors such as, poverty, corruption, inequality, sham democracy, and low-level literacy; however, the effect of terrorism in India over terrorism in Pakistan remains unnoticed. This study explores the role of terrorism in India as a determinant of terrorism in Pakistan. This fangled determinant of terrorism in Pakistan forms the premise of our work. The Johansen cointegration analysis technique confirms the long-run relationship among terrorism in India and Pakistan and unemployment in Pakistan. Error correction model (ECM) resulted 55% of convergence annually. Besides, ECM verifies both short and long-run causalities. The VECM Granger and Modified Wald (MWALD) causality tests reveal that terrorism in India and unemployment in Pakistan Granger causes terrorism in Pakistan, but no reverse causality exists. The study concludes that both terrorism in India and unemployment in Pakistan results in terrorism in Pakistan. Coping with terrorism, Pakistan and India must revisit their respective roles; and simultaneously, Pakistan should address the unemployment problem—which facilitates recruitment for the terrorist organizations.