The ‘Usual Suspects’

Abstract

A key issue in contemporary criminology is the role that social status, and particularly race, plays in legal processes. Previous research suggests that criminal justice proceedings-including arrest, conviction, and sentencing rates-are influenced by victim and offender race, but rarely examines the role of race in reporting events to the police. The following research uses data from the rape sub-sample of the National Crime Victimization Survey of households 1992-2001; logistic regression analyses are conducted to determine how victim and offender race influence reporting of rape to the police, controlling for other incident characteristics. The findings suggest that rapes with a Black perpetrator are much more likely to be reported to police, regardless of whether the victim is white or Black.     

The Critical Instance ‘After’ The Critique of the Subject

The central argument of this piece involves the idea that insofar as␣critique, with its two basic tropes of question and judgment, has been central to the ȁ8classical’ configuration of subjectivity, the critical instance ȁ8after’ the critique of the subject is to be found re-situated on a different philosophical terrain where the question of the question is re-thought and the logic of judgment displaced by an ethic of encounter. It is on this terrain that we can then start sketching the emergence of a different set of critical instances: critical ontologies, critical analytics and critical erotics.     

The Vicious Circles of Habermas’ Cosmopolitics

Habermas’ cosmopolitan project seeks to transform global politics into an emancipatory activity in order to compensate for the disempowering effects of globalization. The project is traced through three vicious circles which stem from Habermas’ commitment to intersubjectivity. Normative politics always raises a vicious circle because politics is only needed to the extent that an issue has become problematized through want of intersubjective agreement. At domestic level Habermas solves this problem by constitutionalizing transcendental presuppositions that political participants cannot avoid making. This fix will not work at the global level because it is pre-political as between human individuals. Habermas therefore premises cosmopolitics on the transformation of nation-states into sites of participatory politics, engagement in which will eventually ignite a global cosmopolitan consciousness. This transformation depends on the constitutionalization of existing UN structures and their enforcement of an undefined and (therefore) ‘uncontroversial’ core of human rights. Unable to ground this project in social practice, Habermas eventually disregards his own lodestar of intersubjectivity based in social practice by relying on the prediscursive concept of human dignity. This move is not merely philosophically inconsistent; it also opens the door to the moralization of politics and the imposition of human rights down the barrel of a gun.     

The Legal Image’s Forgotten Aesthetics

Aesthetics and communications theories are often applied to art, media and popular culture but not within legal empirical (audiovisual) material—despite the fact that a judicial and legal process comprises a palpable utilisation of the visual as evidence of an historical reality. Based on four distinct Swedish cases, this study analyses the court’s reasoning, interpretation and use of (audio)visual evidence. Inspired by an embodied film theory, Benjamin’s thoughts on the technical-dramaturgical components of the camera and the later Barthes’ notion of the ‘punctum’, the article discusses how (audio)visual evidence cannot be disconnected from affective and aesthetic significances that ultimately can be taken to affect the perception of truth and (the crime’s) reality. The gap between theory and practice is debated and argued as beginning to co-exist; instead of seeing (visual) theory and (judicial) practice as a dichotomy, an attempt should be made for a conversation between seemingly different but in practice related areas of knowledge. The author’s aim is to suggest that photographic and filmic evidence has a particular significance in itself, which means that the relation between (judicial) interpretation and outcome should be considered within an affective and aesthetic dimension, rather than being placed and/or theorized outside of it.     

The ‘Commons’ Solution to Troubled Waters

The global commons are traditionally connected to ‘those parts of the planet that fall outside national jurisdictions and to which all nations have access’ such as the high seas, outer space, and the deep seabed. However, there is a trend to expand the reach of commons beyond the traditional perception to cover the environment and natural resources that are of common interest to the well-being of the community of nations, regardless of the sovereignty status over such environment and resources. In this context, this article aims to explore the interlinkage between the concept of (global) commons and disputed marine areas from the perspective of international law, which hitherto has been little explored in literature. In particular, this article discusses the applicability of the concept of commons to disputed marine areas by examining the changing relationship between commons and sovereignty over time. Through a comparative analysis of various legal regimes associated with the well-accepted commons in international law (i.e. the high seas, outer space, the deep seabed, Antarctica) as well as the climate system and biological diversity, the article concludes that a certain space or resource, irrespective of its sovereignty status, including a disputed marine area, can be protected as commons in view of the interdependence of ecological systems. It further analyzes the added values that the concept of commons can bring in addition to the existing regulatory framework governing disputed marine areas.

     

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.     

The inefficacy of private enforcement of directors’ duties

Company directors play an important role in society. Their activities have significant effects on the interests of their companies, shareholders and other stakeholders. Consequently, the law regards them as fiduciaries and imposes duties which set out behavioural expectations. The private enforcement regime is the primary mechanism adopted by many common law jurisdictions for securing compliance with directors’ duties. The crucial question is whether this regime is effective in securing enforcement of directors’ duties. This article addresses this question by examining the fundamental weaknesses of the private enforcement regime. In exploring these weaknesses, it focuses on the UK and Nigerian experience. It crucially argues that the private enforcement regime, due to its weaknesses, is unable to provide deterrence and compensatory benefits. It is therefore ineffective as an enforcement mechanism for breach of directors’ duties. This article therefore concludes that there is need for a complementary enforcement regime.     

The long slumber of Dicey’s Indian monarch

AV Dicey treated amending power in written constitutions as an adjunct of sovereignty and he treated the body charged with the power of amending the constitution as the repository of sovereignty in the system – not any different in quality from the paradigm: the British Parliament. Debates of a piece with those surrounding parliamentary sovereignty reincarnate in systems with written constitutions as debates about the amending body’s power to amend the written constitution. This essay examines the points of contiguity between the debates about sovereignty in the unalloyed form they take in the British model and that of amending power in India and the methods of limiting parliamentary omnipotence adopted by the two systems. It will be argued that although for a while the Diceyian notion of parliamentary sovereignty reigned supreme, eventually India embraced a view of implied limitations on amending power qualitatively akin to common law constitutionalism that places implied limits on parliamentary sovereignty.     

The Evidence for Somānanda’s Pantheism

It is well known that Utpaladeva’s (c. 925–975) articulation of the Pratyabhijñā deviates in style and substance from that of his teacher, Somānanda (fl. c. 900–950), and that the former’s ī?varapratyabhijñākārikās (along with two auto-commentaries) come to be regarded as the definitive formulation of the school’s philosophy almost from the moment they were first composed. In this essay, I argue that while the spirit and general philosophical contours of Somānanda’s ?ivad???i serve as the basis for all subsequent writings in the history of the Pratyabhijñā, Somānanda nevertheless articulates a philosophical monism that is both pantheistic and absent in its essentials from Utpaladeva’s oeuvre. This pantheism, I further suggest, stands in contrast to Utpaladeva’s panentheistic monism, which while compatible with Somānanda’s philosophical vision is nevertheless articulated in different terms: Somānanda emphasizes the functioning of ?iva’s power(s), while Utpaladeva articulates a monism based on the identification of paired opposites. In doing so, this essay identifies Somānanda’s unique contributions to the history of the Pratyabhijñā.     

The One-System View and Dworkin’s Anti-Archimedean Eliminativism

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.

     

The ‘Hybrid Order’: origins and usage

The hospital direction (Hybrid Order) was inserted into the Mental Health Act (MHA) in 1997 (Crime (Sentences) Act, 1997). It enables higher courts to direct hospital admission for offenders, whilst still imposing a prison sentence. The origins of the ‘Hybrid Order’ and its patterns of usage are examined. Comparisons are made with its Scottish equivalent, Section 59A of the Criminal Procedure (Scotland) Act 1995. Both the ‘Hybrid Order’ and Section 59A have been used infrequently. This may reflect the fact that they were strongly resisted on ethical grounds at their point of inception and that they force the psychiatrist into the position of ‘punisher’, rather than ‘treater’. Since the 2007 Amendment of the MHA in England and Wales which expanded the remit of the ‘Hybrid Order’ to include all legal categories of mental disorder, not solely psychopathy, its use has unsurprisingly increased – this article delineates the considerations that need to be given in its recommendation.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

The Legal Subject in Althusser’s Political Theory

There are three dominant conceptual developments in Althusser’s work that suggest the significance of the subject. One is the perpetual work of ideology—its interpellation of individuals. The second is the primacy of the class struggle in relation to the state, and the consequential function of law and rights. The third is the materialism of the encounter as a process without subject. An examination of these three areas (in part, utilising a Foucauldian analysis of subjectivity and power relations) reveals the potentially and strategically important role of legal subjectivity in Althusser’s theory of the political.     

The NHS Information Revolution: ‘Choice of Control’ to ‘Choice’ and ‘Control’

This paper provides a novel and critical analysis of the necessary and important balance between ‘individual privacy’ and ‘collective transparency’. We suggest that the onset of the Information Revolution has created a dilemma for the National Health Service (NHS) in terms of how it addresses its obligation to use information to improve best practice in healthcare for society (‘collective transparency’) whilst also keeping sensitive personal information confidential (‘individual privacy’). There is clearly a need to consider both whether the NHS is balancing this critically important informational relationship and whether its approach is fit for purpose. We argue that the NHS's ‘proxy-individual’ information guardian role could inadvertently mask individuals' intended roles, effectively circumventing autonomy-based laws by limiting the power of individuals to be autonomous. In this article we have identified three issues – first the prevailing ‘Mindset’ (the ‘M’) of ‘privacy’, which is viewed as individualistic, resulting in an overpowering concept of confidentiality; second, the quality and control of Information (the first ‘I’); and third, the concept of innovation (the second ‘i’), which is being used as a ‘solution’ rather than a vehicle for transparency. Indeed, transparency is our target of ‘best practice,’ and we suggest that individual privacy and collective transparency are best embedded within a complementary privacy framework that offers a better fit than the current split of control between the roles of the NHS and the roles of the individual. It is suggested that when facilitated by transparency, ‘control’ and ‘privacy’ form a continuum, aligning through the desire for choice. Therefore, the choice of control could facilitate control and choice. Together, they could replace the concept of privacy by empowering ‘informed patients’ to support the NHS's ‘No decision about me, without me’ pledge.     

The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction

This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome. This revised version was published online in July 2006 with corrections to the Cover Date.     

The functional nature of police reform: The ‘myth’ of controlling the police

For at least fifty years, major movements attempted to reform police and their institutions through professionalization, policy making, and administrative decentralization. One major goal of these efforts was to subordinate street officer discretion to bureaucratic due process. Some recent evidence suggests that such reforms produced primarily the appearance of change without fundamentally altering the status quo. An alternative hypothesis is proposed: Reformers ignored the functional nature of the police role as community-based, extra-constitutional in peacekeeping situations, and reflective of the values related to the maintenance of order.

It may be that liberal society solves the anomaly of the police function by fostering the myth that police are subordinate to due process constraints, while leaving them relatively free in a practical sense to respond to the need for order maintenance and peacekeeping. Effective handling of disorder may require police autonomy, while attempting to subordinate them to bureaucratic control may impair this ability. Police accountability in liberal society, as well as the many reforms designed to achieve it, remains problematic, especially in light of a recent important study suggesting the possibility that police effectiveness against community disorder may be a casualty of many of these reforms.