How Do Fictions Construe Our Laws for Us?

This paper on van Schooten’s book starts from the observation that citizens untrained in the law are yet able to live by the law, while not being part of the established interpretive community. They manage to live with fictions. Neither the discredited flow model of legal communication rejected by Van Schooten nor her own semiotic and institutional alternative theory manages to deal with this phenomenon in an adequate way. We can learn from Plato’s discussion with Crito in which the laws were imagined as speaking beings that there is a long philosophical tradition according to which laws are imagined to speak to us (while everybody knows otherwise). Working with this legal fiction in our own democratic societies requires an analysis of the way fictions construe our laws for us. Five of these fictions are then briefly mentioned: perfect or at least adequate legal knowledge; legislative intention; instrumental reason; the General Interest; and the rule of measures, not of men.     

How do Rights Become Probable in the Global Context?

Liverpool Law Review - In this article is analysed how is the emergence of rights in favour of people with less power in the global context probable and is explored what could be the most integral...     

Personal Laws: Undetermined Norms and Undetermined Concept?

Liverpool Law Review - Many Asian and African constitutional and statutory texts use the phrase personal laws in order to determine the rules applicable to family matters such a marriage, divorce,...     

Bad Samaritan Laws: More Hype than Help?

Law and Philosophy -     

Whither Criminology: Its Global Futures?

This paper takes as its starting point the recent interventions of Jock Young (2011) on the contemporary state of criminology. In adding to these observations those made by Connell (2007) and Aas (2012), the case will be made, following de Sousa Santos (2014), for a criminology of absences. In endeavouring to uncover these absences, the paper will consider how the ‘bogus of positivism’ (Young 2011, chapter 4), its associated presumptions and related conceptual thinking, manifest themselves in two substantive areas of contemporary concern: violence against women and violent extremism. With the first of these issues I shall consider the ongoing controversies in which the bogus of positivism is most apparent: the powerful influence of the criminal victimisation survey as the data gathering instrument about such violence. In the second area of concern, this bogus of positivism is most apparent in its ‘nomothetic impulse’ (ibid: 73). Both of these discussions will expose different, but connected absences within criminology. In the final and concluding part of this paper, I shall return to the questions posed by the title of this paper: whither criminology, and in the light of this discussion, offer some thoughts on the place of Asian criminology within criminology’s global future(s).     

How Do the Laws of Probability Constrain Legislative and Judicial Efforts to Stop Racial Profiling?

Faced with pending legislation and litigation, numerous jurisdictionshave begun programs to monitor a range of traffic stop outcomes,focusing on variation by race or ethnicity. Existing programs,however, ignore the unequal outcomes that motivate oppositionto racial profiling. Statistical relationships limit the abilityof public policy to equalize the various outcomes, even if officersdo not engage in racial profiling to "any extent or degree."This article demonstrates relationships among five outcomesthat are or should be considered when policy on racial profilingis formulated: search rates, find rates, thoroughness of search,rates of detention of the innocent, and rates of apprehensionof the guilty. Once decisions are made as to how to balancedesires for equality of each of these outcomes, problems remainthat are common to statistical assessments of pattern- or practice-of-discriminationclaims.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.     

Was Inclusive Legal Positivism Founded on a Mistake?

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer.     

Justice Under Global Capitalism?

Under conditions of polycentric globalisation, a positive concept of justice is definitively impossible. Justice is aimed at removing unjust situations, not creating just ones. The justice of fundamental rights coerces expansive social systems into self-restriction. Human rights in particular take the role of counter-principles to communicative violations of body and soul, a protest against inhumanities of communication, without it ever being possible to say positively what the conditions of humanly just communication might be. The article analyses some consequences of this view for social counter-movements and counter-institutions.

Reforming Non‐Possessory Secured Transactions Laws: A New Strategy?

Non‐possessory secured transactions are key components of market economies. National and international legal reform projects have been advanced to further their use and broaden access to credit. Yet reforms appear to be limited by practical obstacles posed by national legal categories. This article shifts the focus from domestically defined categories to the operational rules that allow secured transactions to perform their economic function of managing credit risk. This shift leads to a reconsideration of the rules governing publicity and an examination of the policy issues underpinning the evolution of publicity. The article argues that international publicity standards, based on a registry system, could offer a new strategy for reforming secured transactions laws. The recently adopted UNCITRAL's Registry Guide is analysed and considered as a possible tool for reforming national secured transactions laws.     

How Large Should the Strike Zone Be in “Three Strikes and You're Out” Sentencing Laws?

So-called three strikes and you're out sentencing laws for criminal offenders have proliferated in the United States. The laws vary considerably in their definitions of what constitutes a strike. This paper adapts the classic Poisson process model of criminal offending to investigate how varying sentence lengths and definitions of what constitutes a strike affect the effectiveness and cost-effectiveness of these sentencing laws. In particular, it asks whether, by using different definitions for the first, second, and third strikes or different sentence lengths, one can make the resulting incarceration more efficient in the sense of incapacitating more crimes per cell-year served.     

Police Enforcement of Domestic Violence Laws: Supervisory Control or Officer Prerogatives?

Police officers are afforded a high degree of discretion in the exercise of their authority, and the control of this discretion is an important issue. While it is assumed that individual officer attitudes and preferences shape their discretionary activity, these officers are also members of a paramilitary organization with leaders over them. The present study explored the influence of both officer attitudes and management influences to explain variation in officer domestic violence arrest rates. Hierarchical linear modeling was used with a sample of 311 patrol officers and 61 supervisors from 23 municipal police agencies across multiple states. Unlike much of the previous literature, the results revealed that officer occupational attitudes had no effect on this particular officer work behavior. Management influences (such as rewards and written policies) significantly influenced officers’ domestic violence arrest behavior. The findings emphasize the complexity involved in the control of officer discretion.     

Bound feet: How sexy were they?

In lore and literature, footbinding is thought to have been maintained by its erotic attraction for Chinese men. Interviews with hundreds of living village and small-town women who were footbound in their childhood prove this to be an unsustainable myth. In addition to my extensive fieldwork in many Chinese regions, graphic and portable erotic art, and classical erotic novels all reveal a low level of sexual attentiveness to bound feet and shoes even among the literate. Since most commoner marriages were arranged by parents, and since Chinese mothers-in-law were unlikely to seek sexually distracting brides for their sons, it is clear that while Chinese culture produced some bound foot fetishists, the erotic aspect of the practice was of minimal, if any, importance to the huge population of ordinary couples. This finding clears the way for more effective explanations of its remarkable endurance and spread.     

Export Cartels: Is there a need for Global Rules?

One of the reasons sometimes given in support of internationalcompetition rules is the need to curb export cartels. Exportcartels, however, are not necessarily competition or welfarereducing. They are just as likely to enhance competition andwelfare. The evidence reveals that opinions are quite divided.However, there is one constant: no country has a strong incentiveto ban export cartels unilaterally. The reason for this is thatmost of the adverse effects generated by the cartel are experiencedabroad, not locally. Therefore, if there is a case for curbingexport cartels, the alignment of incentives means that an internationalagreement is probably necessary. This article suggests one possiblearrangement.     

Laws to detain individuals with substance dependency: breaching human rights or restoring health?

At the turn of the 20th century in the United Kingdom and Australia, legislation was introduced to detain and treat "inebriates". Since that time, variations of such laws have continued to exist. This column examines current laws in Australia and New Zealand with a particular focus on recent law reform efforts in New South Wales and Victoria. The column raises some of the issues with these laws in relation to breaching human rights for the purpose of treatment.     

Examining the Ruggie Report: Can Voluntary Guidelines Tame Global Capitalism?

In recent years many academics, social activists and NGOs have turned to international bodies in an attempt to hold corporations accountable for their harmful and illegal acts. Significant amongst these is the UN Special Representative of the Secretary-General on issues of human rights and transnational corporations. In 2008, following extensive research and consultation with states, corporations and civil society groups, the Special Representative released a series of guidelines outlining the responsibilities of states and corporations to respect human rights, and of both to ensure access to effective judicial and non-judicial remedies for victims. This paper argues that the UN guidelines fail to recognize or incorporate the empirically and historically demonstrated imperatives that guide transnational global capitalism. While global capitalism is complex and rife with contradictions, its raison d’etre is rooted in profit maximization. The paper sets out alternative provisions with, we argue, greater potential to subject global capital to the rule of law.     

Rolling the Dice: How Many Occurrences Have Occurred?

The insurance litigation that followed from the World Trade Center tragedy has produced two decisions. The two decisions are diametrically opposed. First, the court found that for those insurance policies that contained a definition of the policy term “occurrence,” the collapse of the two buildings constituted a single occurrence. SR International Business Insurance Co., Ltd. v. World Trade Center Properties LLC, et al., 222 F. Supp. 2d 385 (S.D.N.Y. 2002), aff'd, World Trade Center Properties, LLC, et al. v. Hartford Fire Insurance Co., et al., 345 F.3d 154 (2d Cir. 2003). Then, after a trial involving those policies that did not define the term “occurrence,” the jury held that the collapse of the two buildings constituted two occurrences. This incongruous result demonstrates two truths. First, when the insurance industry wants to, it can define the term ‘occurrence’ in a totally unambiguous manner:

Occurrence shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.

See WilProp form insurance policy for the World Trade Center, cited at 345 F.3d at 160.