‘I Can’t’: Capacity to Marry and the Question of Sex

To some extent the nature of the marriage contract has always been ‘about’ sex. Yet it is only in recent years that sex has become an explicit aspect of the legal test of capacity to marry. This paper explores how that test has been developed by the courts since the late 19th century. Through an examination of the case law it traces the nature of the relationship between sex and the capacity to marry; explores how capacity to consent to sexual relations has become a prominent strand within capacity to marry; and asks whether one effect of that prominence has been to marginalise the necessity for an individual to understand certain other important aspects of the marriage contract when assessing his or her capacity to marry.     

What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

     

Raising the Question on ‘Who Should Get What?’ Again: On the Importance of Ideal and Existential Standards

This contribution compares the importance of ideal standards and existential standards on people’s ideas on fair earnings. Ideal standards refer to persons’ preferences for a distribution rule according to which earnings ought to be allocated among members of a social aggregate. Existential standards refer to conditions of the social context, like the average earning or pay inequality, that serves as points of reference when people shape their ideas on just earnings. In line with the theoretical literature, we find that both standards are relevant for shaping people’s ideas on just earnings. However, there seems to be greater consensus among our respondents on the importance attached to the existential standards than over that attached to the ideal standards. We also found a “reversed just gender wage gap”: by assigning higher earnings to fictitious female than fictitious male employees, our female and male respondents seem to compensate former gender-related income discrimination against female employees in the German labor market. Our analysis is based on the answers of 676 respondents living in Germany who participated in an internet-based factorial survey.     

Structuration Theory and Wrongful Imprisonment: From ‘Victimhood’ to ‘Survivorship’?

Building on existing research from a zemiological approach, this article seeks to contribute to a more ontological understanding of the production and reproduction of harms associated with wrongful imprisonment in England and Wales. Drawing from Anthony Giddens’s theory of structuration, it is argued that whilst the harms of wrongful imprisonment are both complex and devastating, victims need not be perceived as entirely passive. Rather, victims of wrongful imprisonment can be viewed as knowledgeable agents with the intrinsic capacity and agency to strategically cope with and even survive the harms that they experience. The article concludes with personal accounts by victims of wrongful imprisonment that form an identifiable ‘survivor’ discourse to highlight some of the key critical factors that are vital in helping victims of wrongful imprisonment to re-structure their lives after release.     

What Can be Done About High-Risk Perpetrators of Domestic Violence?

This article addresses practical implications for preventing lethal and nonlethal domestic violence (DV) that stem from recent research on male domestic homicide perpetrators. The role of risk assessment and batterer intervention programs is emphasized, including specific programming for treatment-resistant perpetrators. Adjunct interventions for related problems (e.g., anger, suicidal behaviour, substance abuse) are offered, and risk management tactics are summarized. The article highlights the significance of safety planning for victims and teaching youth skills for forming and maintaining healthy relationships. Possible solutions to the problem of DV perpetrators who avoid arrest also are highlighted (e.g., public awareness campaigns). Additionally, this article discusses approaches for dealing with psychopathic DV perpetrators, including the possible benefits of community education on psychopathy and early intervention for youth at risk for developing these traits. Some policy implications concerning DV and psychopathy also are covered. The article underscores the importance of coordinated community responses to DV.     

What is the goal of access to health care?

This article first examines the justifications for the goal of access to health care and the variations between health systems in their endorsement of individuals' rights to health care irrespective of income, ethnicity, age and other characteristics. It then examines the meanings of the goal of "access" to health care and considers four key dimensions--service availability ("having" access), service utilisation ("gaining" access), the relevance and effectiveness of services and equity of access. These dimensions provide a common framework that can be applied across countries and health systems and employed to assess the extent to which access to health care is actually achieved.     

What Is the Will Theory of Rights?

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.     

‘Private jurisprudence’ and the right to be forgotten balancing test

Upon receipt of a right to be forgotten request, private actors like Google are responsible for implementing the balancing test between competing rights of privacy and data protection and free expression and access to information. This amounts to private jurisprudence that data subjects, lawyers, and interested parties could, theoretically, game to their advantage. This paper critiques this process and argues two separate, but related points. (1) Search engines have become the sole arbiter of the rights to privacy and data protection under Articles 7 and of the Charter of Fundamental Rights and Articles 8 and 10 of the European Convention of Human Rights, when safeguarding should be a responsibility of state authorities. (2) As private actors face litigation if their decision is not acceptable to the data subject, the right to access information and the public's right to know is compromised. Search engines exert considerable power over access to and Internet usage, yet nevertheless benefit from frameworks that permit a lack of adherence to similar human rights standards as public actors or agencies. As such, empowering search engines as decision-makers over conflicting fundamental rights is problematic. Rather than allow the content of the right to be forgotten to be fleshed out by private actors, the significant body of existing jurisprudence should form the basis for public guidelines on how to implement the right to be forgotten. An analysis of case law of national courts, the European Court of Human Rights and the CJEU reveals two related matters: it is possible to reverse engineer how search engines determine which requests will be actioned and those which will be denied. This paper argues a) collectively the body of jurisprudence is of sufficient standing to develop a public and transparent balancing test that is fair to all stakeholders and b) private actors should no longer be resolving the conflict between competing fundamental rights. The paper closes by positing a framework, loosely based on ICANN's Uniform Domain Resolution Procedure for resolving conflict between conflicting cyber property rights that provides transparency and accountability to the right to be forgotten and removes search engines as arbiters of the balancing test in select cases.     

Germany's ‘Right to be forgotten’ – between the freedom of expression and the right to informational self-determination

Although never having defined it explicitly, German law and jurisprudence imparted a right to be forgotten which could be described as a right to delete long ago. Its basis can be found in the constitution where it is torn between the freedom of expression and the right to informational self-determination. Also, German legislature introduced non-constitutional provisions ensuring the deletion of personal data in specific cases that are applied regularly. This article aims to give an overview of the “German” right to be forgotten, its legal framework and its application in court.     

Policing a Negotiated World: A Partial Test of Klinger’s Ecological Theory of Policing

Objectives

Klinger’s (Criminology 35(2): 277–306, 1997) ecological theory of policing addresses the intersection of environment and police organizational structure on police patrol practices. The current study addresses the following question: ‘Is police response to calls for service influenced by the level of serious violent crime or the level of officer staffing?’

Methods

This question was addressed using crime, incident, and staffing data supplied by the Philadelphia Police Department. The dependent variable was the number of unfounded events per month, per police district, from 2004 to 2008. Analysis controlled for linear and non-linear trends, average monthly temperature, month length, and spatial effects. Data were analyzed using repeated measures multilevel modeling.

Results

Findings suggested that the quantity of unfounded events was associated with both workload and officer staffing levels. Consistent with theoretical predictions, higher workload was associated with more unfounded incidents while higher levels of officer staffing was associated with fewer unfounded incidents, net of ongoing trends and spatial effects.

Conclusions

These findings are consistent with the Ecological Theory of Policing and suggest that officers may shed workload in response to higher demands for service or lower levels of officer availability.

     

In Search of Civic Policing: Recasting the ‘Peelian’ Principles

For over a century the so-called ‘Peelian’ principles have been central to the self-understanding of Anglo-American policing. But these principles are the product of modern state-building and speak only partially to the challenges of urban policing today. In fact, they stand in the way of clear thinking and better practice. In this paper, I argue that these principles ought to be radically recast and put to work in new ways. The argument proceeds as follows. First, I recover and outline the current ‘Peelian’ principles and argue that they lack the specificity, sufficiency and status required in order to do real work in the governance of policing. Second, I make the case for principles both as a regulative ideal guiding our aspirations for what policing can become and as a means of regulating police work in the here-and-now. I then develop a revised set of principles and indicate, in conclusion, how they can guide the formation of trust-producing and democracy-enhancing practices of civic policing.     

What is the magnitude of the subpopulation effect?

The effect of population subdivision on estimated match probabilities has been raised [Nature 339 (1989) 501; Am. J. Hum. Genet. 48 (1991) 819; Science 254 (1991) 1921]. Previous work [J. Forensic Sci. 39 (1994) 319; J. Forensic Sci. 39 (1994) 988; Am. J. Hum. Genet. 55 (1994) 533] has compared product rule estimates from differing databases and found that the "subpopulation" error may be of the order of a factor of 10. This approach compares an estimate with an estimate. This paper uses simulation to extend these studies by allowing a comparison to a 'true match probability' and supports the conclusion that subpopulation effects are mild. In addition the performance of recommendations 4.1 and 4.2 of NRC II [National Research Council and C.O.D.F. Science, The Evaluation of Forensic DNA Evidence, National Academy Press, Washington, DC, 1996].     

Police confirmation of use of force in Australia: ‘To be or not to be?’

Despite significant transgressions during encounters with Indigenous peoples and marginalised groups, all six state police organisations in Australia espouse the principle of minimum force and identify service and crime prevention as paramount in community interaction and intervention. This article offers some insight and perspective of police talk and thinking about the potential use or avoidance of force. The four Victoria Police focus groups, when confronted by the specific police use of force scenario, speak of the adrenalin rush and the need to achieve results, if reasonable and necessary by force, but also of the desire to control the situation and follow proper police procedures. Officers support ‘Safety First’ principles that advocate a cautionary and suspicious approach to the scenario combined with rational and methodical tactics rather than emotional responses. The reflective talk of individual officers about the hypothetical situation parallels actual behaviour when police collectively and visibly confront public disorder. Control and containment of the situation—whether the scenario or a major crowd disturbance—are paramount while time, in the form of acting slowly and adopting a low-key approach, can be seen as assets in achieving objectives. In both the scenario and police planning for collective action, a readiness to threaten force, rather than actually employ it, appears central to police thinking. Police justification of non-coercive tactics in certain situations can be revealing about their thinking processes in justifying force in other circumstances.

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Policing and the Feeling of Safety: the Rise (and Fall?) of Community Policing in the Nordic Countries

A major trend in the Nordic countries is the increasing focus on citizens' perceptions of safety, the enhancement of which is seen as a task for the police. One way to accomplish this has been the introduction of proximity policing. Existing research on the subject from all the Nordic countries is evaluated, with special focus on a comprehensive evaluation of a Danish experiment. The evaluations demonstrate that the concept of proximity policing has had limited success, and it has been abandoned in Finland and Norway. The article concludes by offering some explanations for the lack of success, among these the high level of perceived safety already present in the Nordic countries, the lack of causal relation between police visibility and citizens' perception of safety, and the lack of tradition for citizen involvement in the Nordic welfare states.     

Trial and Error at the End of Life--No Harm Done?

English law gives the competent patient the right to refuselife-saving medical treatment, either contemporaneously or inan advance directive, and a physician commits a battery whentreating a patient who validly refused treatment. However, withregard to the details of a physician's liability, many questionsremain unanswered, and it is not at all clear under what circumstancesa patient's tort action for unwanted life-saving treatment willsucceed, and what remedies would be available to the patient.The article suggests that a physician should be liable in batteryfor administering life-saving treatment, even if he/she haddoubts about the validity of the patient's treatment refusal,unless a defence of reasonable mistake can be established. Furthermore,in case of a battery which resulted in keeping the patient alive,the patient should not only be able to claim nominal damages,but general and special damages, including mental and physicalpain and suffering caused by the prolongation of the patient'slife, should equally be available.     

‘Disband,Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition

Critical criminologists have challenged the utility of efforts to reform the criminal justice system for decades, including strong calls to abolish the prison system. More recently, the rebellions in Ferguson, Baltimore, Milwaukee, and Charlotte have made racialized police violence and police reform issues of national concern. In this article, we examine abolitionist claims aimed at law enforcement institutions in the aftermath of Ferguson and other subsequent rebellions. We consider the implications for abolitionist organizing when the institution of law enforcement, rather than prisons, becomes the explicit target of our movement(s). How are groups theorizing and practicing police abolition and how does this align with, challenge, or expand past conceptualizations of abolition? To answer this question, first we sketch the broad parameters of abolitionist thought, particularly as it is taken up in the disciplines of political theory and criminology. Second, we analyze an emergent praxis of police abolition that revolves around the call to disband, disempower, and disarm law enforcement institutions. We argue that by attacking the police as an institution, by challenging its very right to exist, the contemporary abolitionist movement contains the potential to radically transform society. In this spirit, we amplify abolitionist praxis that (1) aims directly at the police as an institution, (2) seeks to dismantle the racial capitalist order, (3) adopts uncompromising positions that resist liberal attempts at co-optation, incorporation, and/or reconciliation, and (4) creates alterative democratic spaces that directly challenge the legitimacy of the police.