Core Values, the Magistracy, and the Auld Report

In this article I shall first examine the core values underlying criminal justice about which there is some consensus. I then briefly review the current arrangements and decision making processes in magistrates courts in England and Wales before relating the core values to those arrangements and processes. This leads me to certain conclusions about the magistracy that I contrast with Auld's conclusions and recommendations.     

NARCISSISTIC BORDERLINE COUPLES: IMPLICATIONS FOR MEDIATION*

Suddenly my head begins to spin. I feel dizzy and confused. My head keeps going round and round. In front of me sits a married couple; they go on and on in circles, going nowhere. A feeling of despair overwhelms me as I think to myself, This couple needs to be in therapy. I then realize I am the therapist.     

Embracing Emotionality: Clothing My “Naked Truths”

There is increasing awareness and recognition that researchers’ emotions will contribute to a richer and deeper understanding of what they are studying. Researchers’ emotions as analytic tools are particularly relevant when working with marginalized or oppressed groups because of the emotional aspect generally associated with human suffering. This paper discusses how adopting a reflexive practice can help researchers embrace and use their emotions as a part of the research process, enabling a more humanistic approach to studying crime and those whose marginalization and oppression are intricately tied to their crime. More specifically, this paper examines my own experiences of doing research with Aboriginal female offenders in a federal prison. I problematize the process of embracing emotionality by reflecting on the paralysis that evolved in my research with these women as I experienced an overwhelming sense of despair and hopelessness. I contend that social science in the academic arena, not unlike many other institutions in society, has adopted a method of surveillance thereby instilling a sense of fear and judgment upon those working in academic arenas. After describing my reflexive process throughout this emotional paralysis, I describe my discovery of safe spaces as a way of dealing with my emotions and how engaging in creative analytic practice enabled me to clothe my nakedness and vulnerability as I represented, and ultimately re-created my self in the research process. As part of that evolution, embracing emotionality ultimately enabled me to engage in knowledge building as well as advocacy with and for Aboriginal women in prison.     

On the Necessity of the Interconnection between Law and Morality*

Abstract. By taking issue with Robert Alexy's claim to correctness, I attempt to cast light on the nature of the necessity that pertains to the claim. With respect to it, I argue that it should be understood as deriving from the metaphysical requirements for normative knowledge in general. These requirements are shown to include a general norm of autonomy which is a priori and necessary, and comprises a minimal morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far‐reaching conclusions can be drawn.     

Response: The Politeness of History

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.     

Allocating specific benefits and burdens

Conclusion The foregoing is an example of how the rich accounts presented in Local Justice in America can inspire reflections on related issues. I am sure that others who do not share my utilitarian beliefs (some would call them “biases”) would find other ways of looking at these chapters. Whatever the perspective taken, the book raises important questions, and its emphasis on describing intentional rules is a useful approach for the social sciences. A single book cannot do everything, but I wish that this one had also taken a more evaluative point of view, telling us not just how decisions are made but also where they are going wrong according to some explicit standard, and how to improve them. I am sure that even that is considered arrogant by some, but to me it is the ultimate purpose of social science.     

FRUSTRATED CONTRACTS AND LEGAL FICTIONS

“Someone says to me: ‘Show the children a game.’ I teach them gaming with dice, and the other says, ‘I didn't mean that sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave the order?” (Wittgenstein, Philosophical Investigations, 33, trans., (1953)).     

Freedom, Property and Equality in the Theory of `Fundamental Rights'. A Commentary on an Essay by Luigi Ferrajoli

The essay that Luigi Ferrajoli published inTeoria politica is a partial, althoughvery important, preview of an importanttheoretical work on which he has been labouringfor several years. Ferrajoli is knownto be aiming at achieving a rigorousformalisation of the theory of subjectiverights, an undertaking to which he first turnedhis hand at the beginning of the seventies,with the book Teoria assiomatizzata deldiritto, in which he laid the foundations forhis subsequent work, including his extensivetreatise of the theory of criminal law,Diritto e ragione.So it is quite natural that this new essaycontains a quantity of references to conceptualcategories that come together in a veritableWeltanschauung, as it used to be called at onetime, in addition to an epistemology and ageneral theory of law.In order to discuss all his theses in thisessay as seriously as they deserve, we reallyshould go back to that set of philosophicalpremises to which they refer – and whichFerrajoli tends to nurture in a sort oftheoretical latency – and try to focus on anddiscuss them. As this is not the place for such amassive task – for which I may not even havethe necessary competence – I shall restrictmyself to touching on just a few points thatconcern me more closely. I apologise for thisselective and thus not very systematicapproach, made necessary to some extent also bythe large numbers of theoretical and politicalquestions that Ferrajoli's essay tackles,raises or merely touches on. Nevertheless, myselection will be aided by the criticalsignificance that Ferrajoli dedicates to someof my opinions. In short, I shall not try to doany more than to respond indirectly to hiscriticisms. And I shall do so with the greatestof respect, as Ferrajoli well knows, for histheoretical work and for the profoundmotivations that inspire him.     

“Supporting me through emotional times,all different kinds of behaviour.” Forensic mental health service users understanding of positive behavioural support

This service evaluation project explored service users’ experiences of positive behavioural support (PBS) within a medium secure mental health service. Interpretative phenomenological analysis (IPA) was used to analyse interviews with ten service users. Four main themes emerged from the data: My plan; How I understand PBS; How PBS has helped me, the benefits; and Making the plan work. Overall, service users viewed their experience of having a PBS plan positively. They reflected that the plans offered staff greater understanding of their behaviours and needs, enabling them to receive appropriate support. Service users valued the experience of being involved in the process, offering important insights into their experiences. They also expressed frustrations about staff not following the plan and not understanding why they had a plan whilst others did not. Limitations of the study, clinical implications and ideas for future research have been discussed.     

Authoritarianism,creativity, and other aspects of a prison organization

Conclusion This analysis shows that no simple explanation will do when trying to understand a prison. The authoritarian aspects were very negative to me as a professional working there. I did not like being blamed for things I did not do, or being sent to numerous required training programs, almost all of which were worthless for me, telling me thing 1 already knew or could not use. However, there were positive sides to the prison, especially in the treatment aspect. In 1972 Messinger wrote “I must take the position that prisons and custodial mental hospitals should be abolished” (Messinger, 1972, P. 6). His position was that these institutions are so inhumane that society would be better served by their abolition. We probably need more analyses like the present one, and other studies which rely more heavily on more gathering of quantitative data in order to understand what prisons are really like. Only then can we make informed choices, without depending on stereotypes.     

International Crimes and the Right to Punish

What can international courts say when criminals ask, by what right do you try me? Some authors attempt to draw a connection between humanity's responsibility to call offenders to account and the harm humanity has suffered as a consequence of the offender's crimes. Others have argued that there need not be a special connection between those calling to account and the offenders, as the right to punish offenders is a general right each and every person has. Both lines of argument are ultimately unconvincing. Instead, I argue for a modified version of the second position which proposes a democratically based theory of responsibility for punishment held by international criminal law institutions.     

Professor Stanley Cohen: an appreciation

Like so many others, I am saddened by the death of Stan Cohen, my PhD supervisor, mentor, and supportive friend at a particularly difficult time in my life. I first met Stan in summer 1976, when I was applying for a PhD place. In awe of the author of Folk Devils and Moral Panics, a book which did so much to open criminology up to the sociological imagination, I was soon at ease and enjoying a wide-ranging conversation, with the difficult questions posed gently and seemingly lightly, that was Stan's distinctive style. Stan was, of course, the perfect PhD supervisor: always encouraging; nudging me back in the right direction when I was veering off-track. I began my teaching at Essex, and the deviancy ‘dream-team’ – Stan and Ken Plummer – was the best possible start to an academic career.     

No Right to Classified Public Whistleblowing

Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call “classified public whistleblowing.” The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I will outline a more appealing alternative, namely, a justification defense.     

Herbert,Hercules and the Plural Society: A “Knot” in the Social Bond

“They are playing a game. They are playing at not playing a game. If I show them I see they are, I shall break the rules and they will punish me. I must play their game, of not seeing I see the game.”     

The Sense of Freedom. The Surprise of Being-in-Common

‘Globalization’ implies, among other things, the radical crisis of the metaphysical and theologico-political conceptions of sense. The crisis of the device built upon the concepts of the abstract individual, the nation and the State is at the same time the crisis of the subject as a master and an owner of sense (each time, the sense). But, if human beings are subtracted by the national, historical and metaphysical identities, by the system of the meanings-image, they are exposed to the possibility itself of sense as what precedes and exceeds every constituted identity or reality. This article aims at exploring in Jean-Luc Nancy’s thought the strict relationship between the ‘non-appropriable’ nature of sense and the being-in-common of human beings considered not as abstract individuals, but as multiple-singularities. A community that is the opening itself of sense, is not sacrificed to an originary or future Unity, but it is offered to the event of the present; to the existences as events and to an ‘immediate mediation’ as surprise. The experience of this offer as surprise is what Nancy calls ‘freedom’. Graduate student at the University of Venice, Italy; conducting a study of ‘the centres of temporary detention’ for migrants in Italy. The translations of all extracts are mine unless otherwise provided. These pages are dedicated to the migrants of the Association Solidariedade Imigrante of Lisbon, Portugal (to each one and to all of them, their friendship is for me such a great gift). I would like to thank Vania Trento Miotto and Thanos Zartaloudis with all my heart for the precious help in the revision of this article. Obviously, the responsibility for these pages rests entirely with me.     

隐私的价值独特性:个人信息为何应受保护?

要想准确理解已经开始施行的《个人信息保护法》,就必须恰当回答“个人信息为何值得保护”的问题,而这个问题的答案经常与“隐私”的价值关联在一起。但是,对隐私的理解,主要被一种“隐私并不具备独特价值”的化约论所统治;因此,只有击败化约论,才能最终证明隐私的价值独特性,也才能最终说明隐私为何值得保护。击败隐私化约论最主要的理由是,如果认为隐私不具备价值独特性,那么对任何特定个体而言,就只能提供“我是我”的对待,而这种对待将会带来贬损、甚至否认“我是人”的结果,这将会严重损害人的尊严。     

Searching for coherence in the law of involuntary manslaughter: The English experience

B.A., Cornell University 1970; J.D., Duke University 1970. I am indebted to my colleagues Carolyn Hamilton and Janet Dine, as well as to Andrew Ashworth of King's College, for their useful comments. That in the final analysis I may not have followed some of their suggestions does not detract from their value in helping me to formulate my ideas.     

THE ROLE OF SOLICITORS IN DIVORCE PROCEEDINGS*

“I was walking down the boulevard one day with my sister who was down for a week's holiday. She said off the cuff ‘When are you going to get divorced?’ I said ‘I don't know.’ Seeing a solicitor's office, I said ‘ I'll pop in here’—just the job, just like going in the shop for a loaf of bread. So I sees the receptionist. She said ‘ I'll see if he can see you straight away.’ Well, he gave me an interview straight away. Within an hour everything was done. He told me to bring all the gen I could in a couple of weeks time, which I did and then we got on with the job.”     

The experience of civil partnership dissolution: not ‘just like divorce’

Between 2012 and 2014 I interviewed some of the earliest civil partners to dissolve their partnerships about their experience of dissolution. When I presented my findings, most family lawyers responded that dissolution was ‘pretty much like divorce’. And so it was, in many respects; but I thought that such comments missed an important difference. This article focuses on the legal understandings of gays and lesbians who have undergone dissolution of their civil partnerships, and on their experiences of it. This seemed to me significant for three reasons. First, the experiences of lesbians and gay men have historically been marginalised, pathologised or absent from legal accounts and the dominant legal consciousness. In this research they would be put centre-stage. Second, the institution of civil partnership – transient though it may turn out to be – deserves study as the point of entry into legal recognition and regulation of same-sex couples’ relationships in the UK. And, third, it is this precise history that makes it different from marriage, and dissolution different from divorce, whatever the similarities in legal treatment.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)