Genetic Exceptionalism and Legislative Pragmatism

Genetic-specific nondiscrimination laws have been enacted in most states, but the laws are ineffective and increase the stigma of genetic conditions. Whether these laws are better than no new legislation depends on their consequences and a recognition of their limitations.     

Towards a Theory of Institutionalized Judicial Exceptionalism

What happens when the exception becomes the norm, what happens when the law becomes a form for that which cannot have a legal form, that is, the political? The focus of this article is a form of power politics that is institutionalised and set up to work side by side with the existing legal system as a sort of normalized, co‐ordinated court procedure, initiated with the aim of subjecting specific groups (terrorists, criminals) to extended regulatory control and enforcement. These strategic bureaucratic mechanisms of exclusion appear as security enforced measures, which side by side with the existing ‘normal’ legal system govern a specific judicial‐political area. The normalised (or rooted, if one wishes) incorporation of extra‐judicial authority within the legal system will in the article be refered to as institutionalised judicial exceptionalism. The purpose of the article is to theorise and conceptualise the in many ways murky or indistinct phenomenon of institutionalised judicial exceptionalism.This task includes suggesting a model capable of assimilating within its theory the displacement in the relationship between the state, the law and the citizen that stems from the fact that the ever more securitized discourses on terrorism and crime increasingly take priority over the ordinarily non‐derogable principle of equality before the law.     

跨越大西洋的现实主义法学——斯堪的纳维亚现实主义法学与美国现实主义法学之比较

一个要瓦解支持自由放任的政治和法律政策的法律意识形态,特别是将公私领域绝对划分开来的观念,一个要揭露传统法律认识论的形而上学基础,建立经验基础上的法律科学;一个是政治进步主义的延伸,主张法律与权力紧密相关,一个是法律实证主义的一个变异,主张法律与政治、法律与道德之间的严格区分;一个以法官和法官行为为中心,着力于分析法官的司法审判行为,一个从社会学、心理学知识着手研究,对所有人的守法行为进行分析.同被冠以"现实主义"的斯堪的纳维亚现实主义法学与美国现实主义法学有这么多不同,然而他们都有实用主义的传统和进步主义的理念,他们都是声称与过去陈旧体系划分开来的独立的法律批判运动,他们都可以被看成是为了争取更广阔的民主空间而做出的-部分.     

The Philosophy of Scandinavian Legal Realism

Abstract.  The jurisprudential movement known as Scandinavian Legal Realism was founded by the Swedish philosopher Axel Hägerström and the Danish philosopher and jurist Alf Ross in order to destroy the distorting influence of metaphysics upon legal thinking and to provide the secure philosophical foundation for scientific knowledge of the law. I shall present Hägerström's philosophical theory and argue that he is committed to the metaphysical view that the world in time and space consists of causal regularities between things and events devoid of any values that is related to his epistemological view that what there is can be known by experience. Hägerström's philosophy advances a naturalistic approach that conceives the positive law as a system of rules in terms of behavioural regularities among human beings and legal knowledge as an empirical inquiry into the causal relations between legal rules and human behaviour. This approach is followed by his pupils, the Swedish lawyers A. V. Lundstedt and Karl Olivecrona, whereas Ross appeals to logical positivism. The naturalistic approach should be taken seriously since it leaves no room for the normativity of the law and for legal knowledge in terms of reasons for belief and action.     

Homicides in two Scandinavian capitals.

In this study we investigated homicides in the two Scandinavian capitals, Copenhagen, Denmark and Oslo, Norway, for the 10-year period from 1985 to 1994. The total number of homicides was 431; 63.8% occurred in Copenhagen and 36.2% in Oslo. The average homicide rate was 1.6/100,000 in Copenhagen and 1.8/100,000 in Oslo. Blunt force, sharp force, and strangulation were the most common methods. Firearms were also used but did not account for >20% in either of the two cities. This is probably due to strict gun laws in both countries. There was no clear difference between the homicide victim populations in the two cities with regard to age, gender, or social and marital status. The proportion of alcoholics and unemployed persons was much higher than in the background population and to a similar extent in both cities, indicating that the homicide victim populations differ from the background populations. The perpetrator knew the victim in the majority of the cases. The most frequent motives or circumstances in both cities were fights, family rows, financial controversies, or jealousy.     

Asphyxial homicide in two Scandinavian capitals

In the Oslo and Copenhagen capital areas, 94 asphyxial homicides were committed in the 10-year period 1985-1994, accounting for 22% of all homicides in that period. Sixty-nine (73%) of the asphyxia victims were female. The most common method of asphyxiation was manual strangulation. Seventeen (18%) of the victims were below the age of 10, accounting for 59% of all homicides in that age group. Whereas 38% of the female victims were killed by their spouse, this was the case for only one male victim. The motive was not known in a great proportion of cases. Fifty-seven percent of the victims had been subjected to additional violence, and in this respect there was no difference between the sexes. In 12 of the cases the offender was female; in 9 such cases the victim was her offspring. More than half of the victims had no blood alcohol. When disregarding the victims less than 10 years of age, 33% of the male and 49% of the female victims had no blood alcohol. The crime scene was the victim's domicile among 72% of female and 52% of male victims. Forty-two percent of the female and 11% of the male victims above the age of 10 years were married or cohabitant.     

Homicide by firearms in two Scandinavian capitals

In the Oslo and Copenhagen areas, 83 homicides by firearms were registered in the 10-year period 1985 to 1994, accounting for 19.3% of all homicides in that period. The majority of the victims were between 20 and 50 years old, and 58% were male, 42% female. The yearly number of firearm homicides varied between 4 and 15, with neither an increase nor decrease throughout the period. Most of the victims had no detectable blood alcohol at autopsy. Female victims were typically shot in their own domicile with a shotgun by their spouse, mostly because of jealousy or in a family argument, whereas male victims were shot on different locations, predominantly with a handgun, for many different reasons. Most victims were shot in the head, and few had entrance wounds in more than one anatomic region.     

Attitudes and public punishment preferences: Finnish results of Scandinavian sense of justice research

Opinion polls have repeatedly shown that populations favour severe penalties for offenders. However, surveys using a case vignette method, where the attributes of the case described to the respondents are varied, produce more versatile results. Such research gives a nuanced picture of punitive attitudes. In this study, the sentence decisions of laypeople who are informed about the offender’s criminal history, ethnic background, gender, social issues and substance abuse were examined.

A representative mail survey collected in Finland as part of Scandinavian sense of justice research was used as empirical data. Respondents were presented with six criminal cases and asked to determine sentences for them. All respondents received the same vignettes, but the background attributes of the offenders varied randomly.

This study showed that all the background attributes had a clear connection to the sentence decisions. Considering these results, the idea of a ‘general punitive attitude’, which is commonly used in academic literature, appears to be too simple of a way to look at the relationship between attitudes and punishment decisions.     

Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments from Bipolarity and Civil Recourse

Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and unjust enrichment). Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is overdrawn. I argue that it does not succeed in identifying private law’s precise nature.     

Homicide by blunt force in 2 Scandinavian capitals

In the Oslo and Copenhagen areas, 77 instances of blunt force homicides were committed from 1985-1994, accounting for 18% of all homicides in that 10-year period. Fifty-four (70%) of the victims were male, often killed by an acquaintance during a fight. Almost 70% of the female victims were killed in their own home, whereas that was the case for only 30% of the male victims. The majority of the victims (of both sexes) had been hit in more than 1 region of the body. A female offender was encountered in 4 instances; none of their victims were children. Of the 3 children in the blunt force victim group, 2 were battered children. Many of the victims with a blood alcohol level of 0 turned out to have lived for some time after the injury.     

Homicide by sharp force in two Scandinavian capitals

In the Oslo and Copenhagen capital areas, 141 homicides by sharp force were committed in the ten-year period 1985-1994. This method accounted for 33% of the homicides in this period. Thirty-five percent of the victims were female, and most of the victims were between 20 and 50 years of age. The majority of the male victims were killed by an acquaintance, the females by their spouse. Sixty-five percent of the male and 37% of the female victims had alcohol in their blood. The majority of the female victims had lesions in 3-4 anatomical regions, while the males most often had lesions in only one anatomical region. Seventy-nine percent of the females and 36% of the males had self-defence injuries in the upper extremities. In 21 cases (15%) the offender was a woman, 19 of their victims being male; the weapon in these cases was most often a kitchen knife. Seventy-eight percent of the females and 49% of the males were killed in their own home. The most common circumstance was family row when the victim was female, while a fight was the most common circumstance when the victim was male. Three offenders committed suicide after having committed homicide(s) (seven victims; three offenders).