Equal before the law?

This article reviews empirically the relationship between politicians and decisions to prosecute or not to prosecute businesspeople who are suspected of fraud and of complicity in the supply of arms to Iraq, within the context of (a) conventional ideas about impartiality of the administration of law; and (b) the politics of bureaucratic survival. It discusses some key difficulties in ascertaining “what happened” and relative culpability in serious fraud trials, and the personal interest-inspired factors that can influence testimony. It concludes that in the UK, there is relative autonomy in decision-making in serious fraud cases, but that in “politically sensitive areas” such as the supply of arms to Iraq, there has been overt interference on purported “public interest” grounds with the information made available to the defence and even to the prosecution itself. It notes that without access to the grounds for decisionsnot to prosecute, their “purely legal” justification is difficult to challenge, and this is of most social significance where members of social elites are concerned. It concludes by addressing some difficulties in producing procedural models which provide genuine accountability for white-collar prosecutions and non-prosecutions in different countries.     

What is the Harm Principle For?

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other influential accounts. After examining the (considerable) role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence.     

Do C&IT Facilitate the Wrong Things?

There is a simple view of the role of C&IT (computers and information technology) in the legal academy that states, 'C&IT is just a tool. Use it or abuse it as you will. It has no ideology. It can no more be a bad thing than can a car or a chisel'. It is an additional resource on top of whatever we had before. I want to link that claim to a set of analogous claims about the relationship between law and science and law and mathematics, and subject them to scrutiny. I shall call these claims (that science, mathematics and computers are 'just' tools) collectively the 'neutrality claim'. So far as concerns computers, I shall suggest that C&IT in law has a tendency either towards reaction or towards reductionism in how we understand law in the academy. I will finish by considering an area in which computers have been relatively more successful-chess-and trying to work through the similarities and distinctions.     

Why Punish Attempts at All? Yaffe on ‘The Transfer Principle’

Gideon Yaffe is to be commended for beginning his exhaustive treatment by asking a surprisingly difficult question: Why punish attempts at all? He addresses this inquiry in the context of defending (what he calls) the transfer principle: ??If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.?? I begin by expressing a few reservations about the transfer principle itself. But my main point is that we are justified in punishing attempts only when and for a different reason than Yaffe provides. I argue that attempts are legitimately punished only when they raise the risk that a harm will actually occur. To overcome the problems my explanation encounters with factually impossible attempts, I suggest an account of risk that relies on ordinary language and possible worlds.     

Why Do the Finns Trust the Police?

Ideological trends in the criminal policy of the Nordic countries since the 1960s are analysed. Although criminal policy in these countries is not unified, one can argue for the existence of a 'Scandinavian criminal policy' characterized by several common features concerning historical tradition, intensive cooperation and a similar approach to crime prevention and control. The following trends and characteristics are examined in some detail: the cycle from criticism of the treatment ideology to a reappraisal of the role of the criminal justice system and the function of penal sanctions; the differentiation of criminal policy strategies (e.g. social and situational crime prevention, cost-benefit thinking, criminal law policy, sanctions policy). Discernible tendencies towards more unified or, at least, more harmonized criminal policies on the international and European level are also examined. Active participation in this developmental process is encouraged to ensure that the fundamental principles of Scandinavian criminal policy are properly utilized.     

The Brahman and the Word Principle (Śabda)

The literature of Bhartṛhari and Maṇḍana attention in contemporary times. The writings of the prominent linguistic philosopher and grammarian Bhartṛhari and of Manḍana, an encyclopedic scholar of later seventh century and most likely a senior contemporary of Śaṅkara, shape Indian philosophical thinking to a great extent. On this premise, this study of the influence of Bhartṛhari on Maṇḍana’s literature, the scope of this essay, allows us to explore the significance of Bhartṛhari’s writings, not only to comprehend the philosophy of language, but also to understand the contribution of linguistic philosophy in shaping Advaita philosophy in subsequent times. This comparison is not to question originality on the part of Maṇḍana, but rather to explore the interrelationship between linguistic philosophy and the monistic philosophy of the Upaniṣadic tradition. Besides excavating the role of Bhartṛhari writings on the texts of Maṇḍana, analysis this will reveal the interrelatedness of the Advaita school of Śaṅkara often addressed as ‘pure non-dualism’ (Kevalādvaita) and the Advaita of Bhartṛhari, identified as ‘non-dualism of the word-principle’ (Śabdādvaita).     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Why weren't (many) European women ‘missing’?

In a 1990 article, Amartya Sen observed “More than 100million Women … Missing” from the populations of parts of south and east Asia. Direct observation and census data suggested that gender ratios deviated sufficiently from what is known to be normal in modern human populations to suggest that the phenomenon was not random. Researchers have explored major proximate causes of “missing” girls and women such as female-selective abortion, routine neglect of young girls in their families including differential access to modern medical care, and even infanticide. This article uses Sen's work and the research of others on Asia to compare with evidence of the disadvantaging or even “mortal neglect” of girls and women in Western European society in the early modern and modern periods — roughly from the sixteenth to the nineteenth centuries. It argues that the current state of the evidence suggests little support for similar gender-specific forms of mortal neglect in Western Europe. It explores why this may have been so, using evidence from economic, social, demographic and religious life.     

Is the Japanese diet consensual?

The institutional design of the Japanese Diet is commonly believed to necessitate interparty accommodation and to make the legislative process more ‘viscous’ than it appears. This common belief about the Diet is challenged by examining the Constitution, the Diet Law, the House Rules, and parliamentary practices with special attention to agenda setting procedures. It is argued that the ‘unanimity norm’ is less binding than commonly recognised. By applying the criteria proposed by Döring, this paper compares the Diet with western European parliaments, and shows that it ranks relatively high in terms of the ruling majority's ability to control the legislative agenda. Although the post‐war Diet is modelled on the legislative process in the US Congress, it is critically important to keep in mind that the constitutional principle of the Diet follows the fusion of power in the British parliament. The picture that emerges from the analysis is in strong contrast to the traditional image of the Japanese Diet and sheds new light on the majoritarian foundation of the Diet.     

Why So Few (Republican) Women? Explaining the Partisan Imbalance of Women in the U.S. Congress

This article examines why the percentage of Democratic women in Congress has increased dramatically since the 1980s while the percentage of Republican women has barely grown. The central claim is that ideological conformity with the party influences the decision to run for office, and I suggest that partisan polarization has discouraged ideological moderates in the pipeline from pursuing a congressional career. The findings have gendered implications because, first, Republican women in the pipeline have historically been to the left of their male counterparts, and second, there is a dearth of conservative women in the pipeline.     

(Why) should we require consent to participation in research?

It is widely accepted that informed consent is a requirement of ethical biomedical research. It is less clear why this is so. As an argumentative strategy the article asks whether it would be legitimate for the state to require people to participate in research. This article argues that the consent requirement cannot be defended by appeal to any simple principle, such as not treating people merely as a means, bodily integrity, and autonomy. As an argumentative strategy the article asks whether it would be legitimate for the state to require people to participate in research. I argue that while it would be legitimate and potentially justifiable to coerce people to participate in research as a matter of first-order moral principles, there are good reasons to adopt a general prohibition on coercive participation as a matter of second-order morality.     

Is the general data protection regulation the solution?

Never has a text been received with so many requests for amendments; never has the debate around it been so huge. Some see it as a simple duplicate of the Directive 95/46; others present the GDPR, as a monster. In the context of this birthday, it cannot be a question of analyzing this text or of launching new ideas, but simply of raising two questions. I state the first as follows: "In the end, what are the major features that cross and justify this regulation? In addition, the second: "Is the regulation adequate for today's digital challenges to our societies and freedoms? The answers given in the following lines express the opinion of their author. It is just an invitation for a dialogue to go forth in this journal where so many excellent reflections have been published on Digital Law, thanks to our common friend: Steve.     

Is the consumer directive advantageous for the consumers?

According to the EU Consumer Protection Directive a purchaser has the right to ask for either repair or replacement of a defect product, whereas before in some member countries only one of these remedies were available. It seems to be taken for granted in the Directive and in Green Papers that such a reform is an advantage to the consumers. An analysis of a case at the Supreme Court of Norway demonstrates that the opposite might be true. It will be argued that both purchasers and vendors will be better off if the Directive is interpreted in accordance with economic theory. Harmonization of consumer protection across EU countries might be counterproductive. The analysis is of general interest in the sense that it demonstrates that mandatory changes in rights and obligations among contracting parties may have distributive effects different from what is commonly assumed.