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.     

European Citizenship: Towards a European Identity?

Questions of political identity and citizenship, raised by thecreation of the `new Europe', pose new questions that politicaltheorists need to consider. Reflection upon the circumstances ofthe new Europe could help them in their task of delineatingconceptual structures and investigating the character ofpolitical argument.

Does it make sense to use concepts as `citizenship' and`identity' beyond the borders of the nation-state? What does itmean when we speak about `European Citizenship' and `EuropeanIdentity'?

It is argued that the pluralism that has led theorists tooffer a conception of citizenship based upon principles of right,rather that the common good, applies even more strongly at thelevel of the European political order. Developing a contractariantheory of federation, an account of the basis of a Europeancitizenship will be offered in which federalism emerges out of anoverlapping consensus of European citizens on the terms of theirpolitical association.

`European Citizenship' and `European Identity' are discussedin the context of the so-called `European Union', and not in thewider context of Europe `as a whole', or for that matter on aneven broader `cosmopolitan' scale. However, the gist of the articleis that arguments for concepts of `citizenship' and `identity'that go beyond borders of nation-states and that are applied tothe `European Union', could have implications for an even widerapplication.

Finally, and in conclusion, the (empirical) context will beelaborated in which the normative concept of shared liberalcitizenship identity should be realized on a pan-national,European level.

     

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 -     

Global Banks as Global Sustainability Regulators?: The Equator Principles

Banks might now seem odd candidates for the role of global sustainability regulator. Nonetheless, in limited areas of their operation, where global banks kept risk on their balance sheets and were financially exposed to many types of risk often otherwise treated as “externalities,” banks began to enact policies to encourage what they construe as “sustainable” banking. A small number of these banks have started to extend these principles of responsible action more broadly, across many of their business lines, as conditions of lending to their corporate clients. To this extent, it is possible to talk about (some) global banks as global sustainability regulators. The “law of unintended consequences” as used in the legal literature almost always refers to the unintended negative consequences of a regulation or policy. In this article, however, we discuss a potentially positive unintended consequence of the deregulatory and privatization trend of the 1980s and 1990s that was fueled by neoliberal political commitments: some private banks have taken a leadership role in regulating development. Specifically, these banks are enacting policies that attempt to mitigate the potentially negative social and environmental consequences of infrastructure development in politically unstable or environmentally fragile landscapes. The vehicle for doing this is a voluntary agreement called the Equator Principles (EPs). The article describes and analyzes the EPs and reports the initial results from an interview‐based study of the various EPs stakeholders, including bankers, government officials, lawyers, consultants, and critics from nongovernmental organizations. We address—from the perspective of these stakeholders—such questions as why the participating banks decided to join the EPs, what effects, if any, the EPs are having on development practice, and whether the EPs will ultimately prove to be more than a public relations exercise.     

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.     

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.     

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.     

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.     

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.     

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.

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.     

Cheque Fraud: How Serious a Problem?

Cheque fraud or the passing of bad cheques are considered normal events in business life. For some they are also considered a serious problem, but is this view commonly held? An attempt is made to review these beliefs with reference to the Australian experience and also to identify the extent of official statistics on the subject and the actual victims of valueless cheques.     

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.