Eating Peas with One’s Fingers: A Semiotic Approach to Law and Social Norms

This paper proposes a semiotic theory of norms—what I term normative semiotics. The paper’s central contention is that social norms are a language. Moreover, it is a language that we instinctively learn to speak. Normative behaviour is a mode of communication, the intelligibility of which allows us to establish cooperative relationships with others. Normative behaviour communicates an actor’s potential as a cooperative partner. Compliance with a norm is an act of communication: compliance signals cooperativeness; noncompliance signals uncooperativeness. An evolutionary model is proposed to explain how this comes about: evolution has generated an instinctual proficiency in working with these signals much like a language—a proficiency that manifests in an emotional context. We see these social rules as possessing a certain ‘rightness’ in normative terms. This adaptive trait is what we call internalization. Internalization enhances the individual’s ability to speak this code. Because these signals communicate who is and who is not a reliable co-operator, sending and receiving cooperation signals is crucial to individual survival. Individuals who internalized the entire process and thus became more adept at speaking the language were at an advantage. Law seeks to shape the language of norms by maintaining the collective standards of society; as such, understanding how and why this normative language emerges is critical to understanding a core function of law.     

Distorting Fundamental Norms of International Law to Resurrect the Soviet Union: The International Law Context of Russia’s Invasion of Ukraine

Netherlands International Law Review - Russia’s invasion of Ukraine which commenced on 24 February 2022 represented just the latest, albeit most devastating, intervention in a neighbouring...     

Appointment and Term of Office of Judges of International Courts: Innovations from Africa?

Non‐nationals of the Member States of the Common Market for Eastern and Southern Africa (Comesa) were in the past appointed to the Comesa Court of Justice (the Comesa Court) on the basis of their domicile rather than nationality. This article examines the relevant legal provision in this regard and points out that it is capable of far‐reaching interpretation, possibly beyond the intention of the parties to the Treaty establishing Comesa. Further, while the Treaty allows persons who are Judges or are qualified to be Judges in their home countries to be appointed, it also permits the appointment of distinguished lawyers. The article examines the emerging practice in terms of preferences between the two categories and assesses its desirability. In addition, the manner of appointing the President of the Court is mentioned and commented on in relation to its ability to promote or impair judicial independence. Finally, for a two‐year period ending in June 2005, there were no Judges in office on the Comesa Court. The stipulation that led to this hiatus is briefly noted and discussed. During the discourse, comparisons are made with the European Court of Justice and the Court of Justice of the East African Community.     

Epilogue: International Norms for Nationality: An Elusive Goal?

Netherlands International Law Review -     

The Media’s Coverage of Domestic Terrorism

Scholarly interest in terrorism has grown dramatically since September 11. One important line of inquiry within this body of research has been the media’s coverage of terrorism. Although there have been several important studies published on this topic, there has been little research examining media coverage of domestic terrorism. This study fills this gap by examining the media’s coverage of terrorism in the United States from 1980 until September 10, 2001. The analysis is based on a list of terrorist‐related incidents and New York Times articles pertaining to each incident. This study documents the amount and type of coverage received by domestic terrorism incidents, and identifies the variables influencing whether an incident is covered and how much space it receives. The results indicate that most terrorism incidents receive little or no coverage in the news, but a few cases are sensationalized in the press. There are several characteristics that consistently explain which incidents are covered and receive substantial news space. Incidents with casualties, linked to domestic terrorist groups, targeting airlines, or when hijacking is used as a tactic are significantly more likely to be covered and have more articles and words written about them. This study concludes with a discussion of the policy implications of these findings for the understanding of terrorism as a social problem.     

A New Paradigm of Customary International Criminal Law: The UN War Crimes Commission of 1943–1948 and its Associated Courts and Tribunals

This article focuses on the United Nations War Crimes Commission’s significant contribution to the development of customary international criminal law defined by the development of international legal standards and proceedings to combat impunity and promote justice. It draws on the Commission’s official history and its increasingly open archives in order to provide an overview of the UNWCC and its work, its members and its legacy for the contemporary era of international criminal law. The article firstly places the Commission in its historical context through the events and agreements that led to its creation and provided the legal character of the UNWCC. The defining characteristics of the Commission are afterwards described: the nations involved, the committee structure it formed and the sub-commission located in the Far East. Lastly, the accomplishments of the Commission are emphasised and criticisms of its work are presented. The article concludes with a discussion on the legacy of the Commission’s work and a possible future research agenda.     

Testing the Packer Theorem: The Efficiency of Florida’s Criminal Circuit Courts

Herbert Packer’s models of the criminal process are criminal justice theorems, often the foundation of student introduction to the field in introductory textbooks. To date, there is little empirical analysis of the conceptual foundations of the process-based models, namely that courts are more efficient through the utilization of plea bargains, while an increase in trials necessarily decreases efficiency. The present results reveal wide variability in Florida circuit criminal court efficiency within and between circuits from 2004/05 to 2010/11. Regression analysis revealed that the year over year difference in both plea bargain (β?=?.14) and trial percentage (β?=?.13) significantly predicted (p?<?.05) year over year changes in efficiency, but explained a small amount of the variance (R ²?=?.026) controlling for other factors (total model R ²?=?.58–.62). These results show there is more capacity for trials within the Florida courts, and an increase in trials does not negatively impact court efficiency as expected but that other factors are far more relevant in explaining changes in efficiency outcomes. Furthermore, the Packer “assembly line” analogy, a basic tenet of the criminal process, is not found: plea bargains do not strongly predict or explain court efficiency, with structures playing a greater role in court outcomes than the processes conceptualized by Packer. The application to courts and impact on criminal justice education are discussed.     

‘Punishment’ in Non-custodial Sentences: A Critical Analysis

This paper reviews various uses of the concept of ‘punishment’ in relation to non-custodial sentences, including the frequently-made comparison between ‘punishment’ and ‘rehabilitation’. It concludes that ‘punishment’ has no stable meaning in respect of such sentences and, when utilised, often results in non-custodial penalties being found wanting by comparison with imprisonment. It is suggested that all sentences should be regarded as ‘punishments’, and that the creative development of community penalties will best be achieved by working with a threefold conceptualisation of reparation, rehabilitation and incapacitation, set within appropriate boundaries of proportionality.     

Can Online Courts Promote Access to Justice? A Case Study of the Internet Courts in China

The right to access the courts is a basic human right in civilised societies, but the current legal system is unfriendly and often unaffordable for the victims of e-commerce disputes and copyright infringements seeking access to justice. Therefore, how to design a judicial system that is more accessible for the aforementioned victims has become a critical legal point of contention in the digital economy era. In particular, it is not easy to provide solid evidence of consumer disputes or copyright infringements on the Internet because the electronic evidence stored on the current centralised database has data security and trust problems. In response to this challenge, China established three Internet Courts in 2017 to move dispute resolution for e-commerce disputes and copyright infringements from the physical courts to the Internet. All the proceedings in these Internet Courts are conducted on the Internet, so the time and expenses of the litigants can be largely reduced. Most notably, these Internet Courts accept the use of blockchain as a method of securing evidence, to overcome the risks that evidence stored on the Internet can be hacked or falsified. The notion of an Internet Court, which substantially enhances popular access to justice, is a significant judicial innovation. It is of special significance for those lawsuits with small value claims and online evidence, and in which the parties are separated by long distances. However, these Internet Courts leave much to reflect on, including whether due process can be guaranteed, whether public trial can be fully implemented, and whether blockchain-based evidence is absolutely admissible. Even so, this article argues that true justice is not only to pursue absolute correctness of judgements, but that true justice should also strike a balance between the correctness and efficiency of trials. For this reason, Internet Courts may yet establish a new judicial paradigm to pursue a balance between correctness, time, and cost.     

Interim Legality: A Mistaken Assumption?--An Analysis of Depleted Uranium Munitions under Contemporary International Humanitarian Law

Depleted Uranium (DU) munitions are the latest, and perhapsmost effective, in a long line of armour-piercing projectilesused by military powers the world over. DU is a very dense material,allowing it to pack a lot of kinetic energy into its "punch",which makes it remarkably good at puncturing (enemy) armour.However, DU is also radioactive waste. Although DU does notactually employ radiation for its primary purpose—andhas negligible radioactive output compared to the more (in)famous fissile uranium isotopes—it has been alleged, withsome scientific support, that this radiation plays an insidioussecondary role, causing superfluous injury and unnecessary sufferingamong combatants; while also indiscriminately "attacking" (i.e.seriously adversely affecting) local civilians living in ornear combat zones. The purpose of the present paper is to analyse these allegationsand to consider their effects—whether true, false, orinconclusive—within the framework of contemporary internationallaw. To this end, the allegations of proponents will be summarisedand the supporting and negating scientific data considered.Then the current rules of international humanitarian law (IHL)will be examined and applied within a systemic context intendedto highlight the implicit assumptions and theoretical misunderstandingswhich generally plague their application. The scientific data pertaining to DU illustrates the complexityof the instant problem, and perhaps more importantly, helpsto demonstrate the degree to which even a superficially obviousclaim—i.e. dumping radioactive material is bad—canin fact form the basis of protracted, and ultimately inconclusiveargument, especially if the contentions of each side shouldprove in some way incommensurate. This is a problem which can be exaggerated in internationallaw by the absence of a court of compulsory jurisdiction, andfurther exacerbated in IHL by the use of relatively imprecisevariables to construct the matrices within which decisions areto be made. These problems, however, also serve, positively,to emphasise the importance of understanding the legal realityof the interim period before definitive conclusions to suchdisputes are constructed or discovered. Elucidation of the legalregime in force in this interim period thus forms an importantfocus of the present inquiry.     

Looking Inside the Black Box of Drug Courts: A Meta‐Analytic Review

There has been a rapid proliferation of drug courts over the past two decades. Empirical research examining the effectiveness of the model has generally demonstrated reduced rates of recidivism among program participants. However, relatively little is known about the structure and processes associated with effective drug courts. The current study seeks to address the issues by exploring the moderating influence of programmatic and non‐programmatic characteristics on effectiveness. The methodology goes beyond previous meta‐analyses by supplementing published (and unpublished) findings with a survey of drug court administrators. Consistent with previous research, the results revealed drug courts reduce recidivism by 9% on average. Further analyses indicated target population, program leverage and intensity, and staff characteristics explain the most variability in drug court effectiveness. These findings are discussed within the context of therapeutic jurisprudence and effective interventions.     

Italian Courts,the ECJ and Transfers of Undertakings: A Multi-Speed Dialogue?

The paper seeks to analyse certain paradigmatic cases of dialogue—or, indeed, non-dialogue—between national judges and the ECJ, though within the (still possibly emblematic) limits of a focus on the law on the transfer of undertakings. The analysis is less concerned with portraying the detailed impact of the ECJ's decisions on the domestic legal order, and is focused more upon the 'modality' of the dialogue to date carried out between Italian and European judges. The logic, which guides this dialogue (or, the lack of its evolution), furnishes us with a better understanding of the production, circulation and impact of ECJ jurisprudence. This dialogue seems to be characterised, by non-uniform, or multi-speed, developments. On the one hand, Article 177 references have been concentrated around the theme of undertakings in critical difficulties or subject to a creditors' arrangement procedure. In this area, the Italian courts have engaged in explicit dialogue with the ECJ and have made the greatest effort to read—not without some technical-juridical struggle—the national norm in the light of the provisions of the Acquired Rights Directive and its interpretation by the ECJ. By contrast, however, with regard to other specific issues (in particular, those concerning subcontracting) it is apparent that not only were the Italian courts (and the Corte di Cassazione in particular) loathe to enter into direct dialogue with the ECJ, but also that the ECJ's jurisprudence, built up through dialogue with other national courts, was not even consulted in an effort to guarantee an interpretation of national norms, in conformity with Community law.     

A Hierarchical Analysis of Correctional Officers’ Procedural Justice Judgments of Correctional Institutions: Examining the Influence of Transformational Leadership

A substantial body of prior research has demonstrated the significant positive effect of organizational procedural justice on institutional policy compliance. However, research examining the antecedents of organizational procedural justice is only just beginning to emerge in the criminal justice literature. Due to the potential for institutional deviance and the importance of rule adherence among individuals in positions of authority, we believe it is important to investigate correctional officers’ procedural justice perceptions. As such, this study examines 929 correctional officers over 40 institutions to identify if criteria for fairness, leadership style, and officer and institutional characteristics influence officers’ perceptions of procedural justice. Results from hierarchical linear regression indicate that the ability to have a say in decisions, a sense that institutional rules are impartial, and perceptions that management leads through motivation and encouragement significantly increases correctional officers’ perceptions of procedural justice. Implications and directions for future research are discussed.     

Fazhi vs/and/or Rule of Law?: A Semiotic Venture into Chinese Law

The paper is an investigation offazhi (rule of law) in China. The studyproposes a tentative semiotic framework for theinterpretation of the rule of law as a legalconcept to be applied to China in the light ofits recent incorporation into the ChineseConstitution. The paper argues that legalconcepts such as the rule of law are triadic innature and their constituents are relative,relational and contextual in the semioticinterpretative process. The study examines howthe concept can be explicated with the thin orformal theory of the rule of law as a frame ofreference, and how the semiotic model maycontribute to the understanding of the Chineserule of law or the lack thereof. This approachalso attempts to account for the gap betweenthe legal ideal and reality in China andcanvasses cross-cultural considerations. In thefirst part of the paper, a semiotic frameworkfor legal concepts is postulated forconstructing the meaning of the rule of law,followed by its application to contemporaryChina.     

Edleson Revisited: Reviewing Children’s Witnessing of Domestic Violence 15 Years Later

A systematic review of literature was conducted using the criteria identified in Edleson’s (Journal of Interpersonal Violence, 14(8), 839–870, 1999) article titled “Children’s witnessing of domestic violence.” Based on the recommendations in Edleson’s (Journal of Interpersonal Violence, 14(8), 839–870, 1999) article, four themes were examined in the current research 1) the impact of exposure to domestic violence, 2) the cumulative effects of exposure to multiple forms of violence, 3) potential protective factors that highlight children’s resilience, and 4) the father-child relationship. Using similar methods identified in Edleson’s (Journal of Interpersonal Violence, 14(8), 839–870, 1999) article, the literature was searched and 46 articles reviewed during the Fall of 2014. The results highlight areas of great success in expanding the understanding of children’s exposure to domestic violence to increase identification and prevalence. However, the results found that after nearly 15 years, there has been little advancement in the research literature on emphasizing children’s voices in their experiences of domestic violence.     

Domestic Violence and Maternal Reports of Young Children’s Functioning

Maternal reports of 60 preschool-aged children were used to investigate trauma responses to living in households where domestic violence was present. Post-trauma symptoms were measured using developmentally modified criteria based on the Child Behavior Checklist (CBCL). Mothers’ level of anxiety, depression, somatization, and self-reported parenting stress were also assessed. Results suggested that, in addition to clinical levels of Internalizing, Externalizing and Total Problem scores on the CBCL, young children displayed a range of post-trauma symptoms. Mothers reported a high level of violence, and a significant relationship was found between self-reported levels of distress and parenting stress. Parenting stress was found to be the strongest predictor of children’s scores on the CBCL. Although domestic violence alone was not significantly correlated to child outcomes, results indicated that maternal distress adversely impacted on the parent-child relationship. The importance of the child’s relationship with the primary caregiver was discussed. Implications regarding further research, developmentally appropriate diagnostic criteria, and early interventions with the primary caregiver are highlighted.     

Imagining New Social Legal Futures: A Sociolinguistic Analysis of Pre-Law Students’ Experiences with Discourse Communities of Legal Practice

This paper considers the ways that concepts such as social justice and law were used as semiotic objects-in-tension by a group of five US undergraduates considering law school to make sense of their ideas about entering the discourse communities and communities of practice associated with being a lawyer. This group was made up of undergraduate women who had completed a summer residency program sponsored by the Law School Admissions Council to increase enrollment of students from under-represented groups. Of the five participants, two were US-born; the others immigrated to the US as teenagers; each was aware of her position as multiply marginalized, by gender as well as other factors, including refugee or immigrant status, religious affiliation, sexual identity, and/or association with “at risk” labeling. Data analyzed reflect a 3-year study of their changing perceptions of their relationships to law school discourse communities, using text, interviews, individual video narratives, and informal, face-to-face group meetings. A sociolinguistic approach to multimodal discourse analysis is used to examine the ways that the women, each in a unique way, articulated an increased investment in direct and embodied engagement, lived experience, and personal testimony—not as supplements to doing/being a lawyer, but as necessary and expected practices therein. Over time and through various modalities, they used their vantage point from outside the dominant discourse communities of law to stage social critique and to contest the binary logic and normative criteria that forge the boundaries of exclusion from and inclusion in these communities. Specifically, they resemiotized notions of being a lawyer from the margins in ways that demanded a more fluid and polysemous interpretation of what it means to do ethically rigorous social justice work—hence reworking the relationships between justice (as an abstract ideal) and the law (as an institutionalized regime) and widening the semiotic potential of their own future work. Particularly significant are the ways that semiotic trajectories progressed from an emphasis on what Halliday identifies as textual (fixed and highly abstract) functions of language to interpersonal (embodied, relational) and ideational (expressive, experiential) functions. Such a trajectory away from entextualization suggests that voices and perspectives from the margins may be using those imaginary margins tactically as sites from which to contest the boundaries that define whose voices count within the legal system and to contest normative limits on semiotic potentialities for lawyers working toward more just social futures.