Bennett’s Expressive Justification of Punishment

In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to establish the following claims: (1) punishment is the only symbolically adequate response to a wrongdoing; and (2) punishment is permissible if it is the only symbolically adequate response to a wrongdoing.     

A Survey: Children’s Rights Post Termination of Parental Rights and Pre-Adoption

This survey of the statutory provisions and case law of all 50 states and the District of Columbia includes the rights of children to parental support, inheritance, and familial association remaining upon termination of parental rights. A majority of states terminate all the child’s rights at the time parental rights are severed. However, a number of states by explicit statutes or statutory construction have determined that a child’s rights to parental support survives termination of parental rights. This survey examines the prevailing law in each state and suggests statutory reforms to protect the legal status and rights of children.     

Mr. Winterkorn’s Pay: A Typology of Justification Patterns of Income Inequality

This article develops a typology of justification patterns of income inequality by means of analysing the discourse surrounding executive pay in Germany. The case of a public debate about the record salary of the car manufacturer VW’s CEO, Martin Winterkorn, in 2012 and 2013, is identified as a rich source for a reconstruction of specific argumentative patterns and their underlying premises. The typology presents five justification patterns, (1) equality of opportunity, (2) desert, (3) procedure of salary determination, (4) harmful consequences of income inequality and (5) need. Further cross-patterns are identified. A key finding is the crucial—but often not explicit—role of factual, definitional or behavioural premises. It is argued that unveiling the structure of justification patterns of income inequality can provide a key tool in scrutinizing as well as in further analysing public debates about income inequality.     

Mill’s Defense of Capital Punishment

John Stuart Mill strongly supports capital punishment for aggravated murder. He rejects various arguments against capital punishment, including the claim that it is incompatible with respect for human life. He believes that capital punishment is a superior deterrent to the alternative of life imprisonment with hard labor. However, the deterrent effect of capital punishment is achieved by its appearance of severity. In fact, it is less cruel than the alternative, and it is the least severe form of punishment that would effectively deter murder. Mill regards death itself, as distinguished from the manner of dying, as a relatively minor evil. His views on death and capital punishment are not compelling, and, if they were widely accepted, would undermine the seriousness of some types of murder.     

Speaking the City: Punishment,Performance and the Perception of London’s Public Space 1780--1840

The paper contends that in order to understand the role of punishment within the Georgian city we must challenge our own perceptions of space. A key difference I suggest between the Georgian and the modern city was that in the former most of the city space had yet to become functionally specialised. The competing demands placed upon it had not yet been, in the main, resolved by municipal authorities; since they were not, as yet, inclined to think in terms of functional efficiency. Consequently, punishment existed as but one activity, embedded within a general culture of public performance. Execution in particular, depended for its efficacy upon the creation of intense nodes of experience within the realm of the ordinary and found its place within a wider system of communication between the orders based upon the notional equality of violence. It was then, owned by the public in a way that was soon to be repudiated. That repudiation was, I suggest, inextricably connected with a reformation of urban space, which was in part motivated by the challenge to public order posed by popular radicalism and which was substantially driven by the application of principles of subjugation and manipulation derived from liturgy and religious practice. It was, I suggest, the subjugation of public space and the suppression of popular performance that in turn necessitated the re-conceptualisation of one of its elements, that is to say, punishment. Punishment was re-conceptualised by disenfranchising those who had formerly owned it in return for the offer of a new, but largely fictitious, form of social ownership of public space.     

Intergenerational Transmission of Parental Corporal Punishment in China: The Moderating Role of Spouse’s Corporal Punishment

Intergenerational patterns in the transmission of parental corporal punishment and the moderating effects of the spouses’ use of discipline on these patterns in China were examined. A total of 761 father-mother dyads reported on their experience of corporal punishment in childhood and their current use of discipline toward children. Results indicated that corporal punishment was transmitted across generations in China, and the strength of transmission was stronger for mild corporal punishment than for severe corporal punishment. Moreover, fathers’ corporal punishment moderated the transmission of the mothers’ discipline, but the moderating impact of mothers on the fathers’ discipline was absent. These findings suggest that the intergenerational transmission of corporal punishment differs according to severity and is moderated by the spouses’ discipline.     

A Review of Sex Disparities in the “Key Players” of the Capital Punishment Process: From Defendants to Jurors

Extralegal disparities between defendants sentenced to the death penalty and those who receive life without parole disturb even the most resolute advocates of capital punishment. Extensive bodies of research document extralegal factors influencing death penalty outcomes. Although studies largely focus on race and ethnicity, a growing body of research considers the impact of sex on the capital sentencing process. This paper reviews the extant research on the impact of the sex of the victim, defendant, attorney, juror, and judge on capital case outcomes. Women’s scarcity on death row and a previously documented “female victim effect” condemning male defendants who kill female victims, particularly for those committing crimes of sexual degradation, suggests that death row policies and their implementation chivalrously protect female defendants and victims. Conversely, a limited amount of research documents a “domestic discount,” or greater leniency for death-eligible crimes commonly victimizing women than for those victimizing acquaintances or strangers. Although opinion polls document greater support for the death penalty among men than women, juror sex inconsistently predicts sentencing outcomes in the literature. Minimal research on judge and attorney sex finds female judges more liberal in death penalty sentencing than male judges and inconclusive relationships between attorney sex and adjudication. Findings in the research on sex and death penalty outcomes support the existence of a “sex effect” and inform recommendations for future research to expand the body of literature.     

Offender’s Personal Circumstances and Punishment: Toward a More Refined Model for the Explanation of Sentencing Disparities

Prior research suggests that offender sex, age, and race are often influential determinants of sentencing outcomes. According to focal concerns theory, they affect sentencing because—due to limited time and information—judges rely on stereotypical behavioral expectations when assessing offender blameworthiness and dangerousness. As such, extralegal offender characteristics may serve as proxies for more specific risk indicators. Whether more complete information on additional risk factors helps account for the effects of extralegal characteristics, however, remains an untested assumption. Therefore, this study analyzes the Dutch data on standardized pre-sentencing reports to examine the influence of personal circumstances of the offender, such as employment, family, and drug use factors, on the likelihood and length of incarceration. The results suggest that personal circumstances exert inconsistent influence over sentencing outcomes and that they fail to significantly mitigate the direct effects of sex and age, but do mitigate the effects of national origin.     

Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

Complainants’ Views about Civilian Review of the Police: A Study of the Philippines

In search of effective control of the police, several countries have created civilian review boards. The Philippines recently adopted such an approach by establishing the People’s Law Enforcement Board (PLEB). The board is envisioned to enable citizens to participate in the process of police control. This study examines the perceptions of complainants about the board in a metropolitan area in the Philippines. Using surveys, the study aims to determine the integrity, legitimacy, and efficiency of the board as well as the satisfaction of complainants with the review board. The findings suggest that complainants were highly satisfied with the People’s Law Enforcement Board. Complainants also showed great concern for the legitimacy of the board and the timely resolutions of their cases. In addition, the study confirms previous studies’ findings on the predominant influence of case outcomes on complainants’ satisfaction.

Reflections on Punishment from a Global Perspective: An Exploration of Chehtman’s The Philosophical Foundations of Extraterritorial Punishment

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

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.     

Britain and European Human Rights Law: An Author’s Apology

Netherlands International Law Review - In four books published between 1990 and 2008, I, along with my two co-authors, was very optimistic about the up-ward trajectory of European human rights law,...     

Victor’s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros’s The Ends of Harm – namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment.