Spectacularizing Crime: Ghostwriting The Law

Beginning with an examination of the process whereby punishment turns its point of application from body to subject, and its scene of application from public to private -- as Foucault outlines in Discipline and Punish -- this paper attempts to complicate Foucaults thesis of a shift from corporeal visibility to invisibility as it appears in his account of the withdrawal of punishment from a public, spectacular domain into the no less public yet private sphere of the prison by attending to the transformations of spectacle itself which accompanied this process of disembodiment. The embodied spectacle of punishment -- the states theatre of cruelty -- gave way to a disembodied discursive explosion of images of crime and punishment, and this process can be traced through the texts of Bentham (Panopticon Letters, Fragment on Ontology) and Dickens (Great Expectations). Foucaults dichotomy between the spectacle of public punishment and the disciplinary, non-spectacular prison overlooks the importance of images of crime and punishment which come to pervade public discourse and imagination as part of the installation of the disciplinary régime. Spectacularizing entails a move from the specific, embodied singularity of spectacle to the condition of a generalized, disembodied, and continual insistence: it is this that constitutes and characterizes the shift from spectacular sovereignty to disciplinary surveillance. This spectacularizing is akin to the spectre: some thing that remains difficult to name: neither soul nor body, and both one and the other (Derrida). The spectre haunting the nineteenth century was the criminal, and that centurys rationalizing of crime and punishment was based upon a fear of the spectral itself.     

人体器官犯罪的刑法规制——对《刑法修正案(八)》第37条的分析解读

目前的器官犯罪主要与器官移植有关,是科技风险在该领域的突出表现.对此,《刑法修正案(八)》第37条新增了有关器官犯罪的内容,旨在以刑法手段应对与器官犯罪有关的科技风险.该条文既具有科学合理之处,如理性克服了对供/受体直接交易行为的犯罪化冲动等问题,也存在不尽完善之处,如未对精神病患者等特殊对象权利保护问题作出规定等.因此,有必要结合科技风险对该条涉及的器官犯罪若干问题进行深入研究并提出完善建议.     

作为犯罪构成要件的罪量要素--立足于中国刑法的探讨

一犯罪构成是犯罪成立之条件 ,这已是刑法理论上的共识。然而 ,各国刑法对犯罪成立条件的设置是有所不同的 ,犯罪构成理论对此必须予以足够的关注。在大陆法系国家 ,通行的是“立法定性 ,司法定量”的方法 ,因此根据行为性质区分罪与非罪的界限。任何犯罪都是一种行为 ,这种行为具有特定的性质 ,是否属于刑法规定的某种行为 ,就成为定罪的根据。在这种情况下 ,犯罪构成是行为的质的构成 ,而不涉及行为的量。因此 ,犯罪构成要件是罪质要素。当然 ,日本刑法理论上也有“可罚的违法性说”之倡导 ,主张轻微的法益侵害行为不予处罚。但在犯罪构成…     

论英国商标法与反不正当竞争法的关系

英国仿冒法属于普通法的范畴,英国商标法则是最早的成文法之一。从起源开始,仿冒法就与注册商标法有着密切的关系,他们之间既相互联系又相互分离。商标注册是否是仿冒之诉的抗辩理由是处理商标法与仿冒法关系的重要理论问题。英国认为商标法与仿冒法平行,商标注册不能成为仿冒之诉的抗辩理由。我国应借鉴英国的观点,使商标法与反不正当竞争法的关系得以明晰。     

Law clinics in England and Wales: a regulatory black hole

There has been very limited consideration to date of how the regulatory environment in England and Wales impacts on university law clinics and the solicitors who run them. This paper sets out the current regulatory framework pertaining to university law clinics and explains the restrictions and limitations it poses. It highlights the current failure on the part of the regulators to meet their statutory duty to promote access to justice in relation to university pro bono services and sets out a series of recommendations as to how clinicians and regulators can secure a more certain and enabling future for clinics.     

传销犯罪的法律适用——兼论组织、领导传销罪与非法经营罪、诈骗罪的界限

《刑法修正案（七）》设置了组织、领导传销罪,但关于传销定性的《批复》仍未失效。为履行入世承诺,避免国际贸易摩擦,对传销不能一概视为犯罪。“传销”含义随国家政策不断变化,需准确界定其范围才能正确适用法律。传销犯罪不能认定为诈骗,其法律适用应为“双轨制”模式：“团队计酬”仍属非法经营罪,而“拉人头”、“收取入门费”则应定为组织、领导传销罪。“双轨制”从立法理由看,具有应然性;从刑法解释看,具有实然性。     

The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law

Through an analysis of a unique and understudied unit within the US Department of Homeland Security (DHS), the Human Rights Violators and War Crimes Unit (HRVWCU, or “the Unit”), this article addresses the following theoretical and policy question: once someone has been admitted to the United States and granted permanent residency, or even citizenship, how does the law facilitate the reversal of that decision based on acts committed long ago and far away? We argue that the HRVWCU has created a significant new way to govern immigration through crime—specifically international crime—while simultaneously trying to ensure justice for mass atrocities through immigration law. In offering an overview of the Unit's origins and approach in blending international criminal law, domestic criminal law, and immigration law, we show how this Unit reflects an expansion of crimmigration in the United States and abroad. In order to illustrate the dilemma of internationalized crimmigration, the article focuses on the Unit's cases related to war crimes in Liberia and Bosnia, which have two very different (at least from the perspective of international criminal law) types of alleged perpetrators: those who allegedly gave orders and those who allegedly followed orders.     

Law and Custom: Insurance in Sixteenth-Century England

A law of marine insurance began to emerge in England in the second half of the sixteenth century. A struggle between merchants and lawyers for jurisdiction over insurance disputes led first to the creation of a merchants’ court in London, and in 1601 of a hybrid court consisting of lawyers – both common and civil – and merchants. In the late 1570s, under pressure from the privy council, a substantial code of insurance was drawn up by London merchants, but it was never formally adopted. Within twenty years custom and practice had moved away from the letter of the rules which had been written down, and the opportunity to create a developed law of insurance was lost.     

Ideologies in Law Time: The Oxford History of the Laws of England

In the introduction to the new Oxford History of the Laws of England 1820–1914, the authors suggest that their task is to tell the “history of the law itself.” This review essay examines what can be learned from a history told from law's internal point of view rather than through the perspectives of other disciplines, such as economics or philosophy. It considers whether and how the common law responded to industrialization and laissez‐faire ideology, the influence of salient philosophical movements—such as utilitarianism—on statutory change, and how all history is an exercise in ideology. In considering the public sphere, it suggests that this work should form the inspiration for further inquiry.     

Post-colonial Fragments: Representations of Abortion in Irish Law and Politics

The Republic of Ireland has become infamous for its legal stance against abortion, especially since it went as far as stopping, albeit temporarily, a young rape victim from travelling abroad for an abortion in 1992. I argue that one of the rationales behind anti-abortion law is a post-colonial urge to mark Irishness distinctively by constructing it in exclusively 'pro-life' terms. I discuss examples of how Irish colonial experiences have been used to justify the effort to keep Ireland abortion-free, and to resist that effort. Representations of colonial history in the context of Irish abortion law and politics have changed over time and between groups. Such changes indicate a need for post-colonial critique to account for the fragmentation of colonialism as it is displaced, a need which the conceptualization of post-coloniality as a historical object can address.     

刑事法治视野中的罪刑法定原则——对我国刑法第3条的反思

罪刑法定原则与法治理念是同一时代背景下的产物。现代刑法的规范设置应与罪刑法定原则的真正蕴涵和法治理念和契合，我国刑法第3条的规定没能确切回应这一时代要求。     

枉法仲裁罪思辨——仲裁性质两分法与比较法下的考量

枉法仲裁罪的设立是有利有弊、且基本上利大于弊的,但利弊之争并非问题的关键所在.关于枉法仲裁罪的争议,最关键的问题还是在仲裁的性质上.运用仲裁性质的两分法,可发现仲裁责任属于仲裁的外部关系、应主要从司法性来考量.仲裁的外部关系及其司法性,决定了枉法仲裁罪的设立其本身是合理的.运用比较法可发现,枉法仲裁罪的设立并非是对尊重仲裁的国际惯例的违背,相反,这是在贯彻这一原则性的国际惯例的基础上,结合本国实际情况和需要所采取的合理的具体措施.枉法仲裁罪的设立在短期内仅有较小的消极影响,而从长远来看,枉法仲裁罪的存在不会对中国国际商事仲裁的发展带来消极影响.     

澳门刑法中叛国罪的犯罪构成研究

澳门《维护国家安全法》以特别刑法的形式确立了澳门刑法中的危害国家安全罪。依据“主客观相统一”的刑法基本原则,从叛国罪的危害行为、危害结果、因果关系、主观要素中的罪过形式等方面进行法律分析,有助于绘制出了澳门刑法中叛国罪的犯罪边界。     

The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime

An important yet poorly understood function of law enforcement organizations is the role they play in distilling and transmitting the meaning of legal rules to frontline law enforcement officers and their local communities. In this study, we examine how police and sheriff's agencies in California collectively make sense of state hate crime laws. To do so, we gathered formal policy documents called “hate crime general orders” from all 397 police and sheriff's departments in the state and conducted interviews with law enforcement officials to determine the aggregate patterns of local agencies' responses to higher law. We also construct a “genealogy of law” to locate the sources of the definitions of hate crime used in agency policies. Despite a common set of state criminal laws, we find significant variation in how hate crime is defined in these documents, which we attribute to the discretion local law enforcement agencies possess, the ambiguity of law, and the surplus of legal definitions of hate crime available in the larger environment to which law enforcement must respond. Some law enforcement agencies take their cue from other agencies, some follow statewide guidelines, and others are oriented toward gaining legitimacy from national professional bodies or groups within their own community. The social mechanisms that produce the observed clustering patterns in terms of approach to hate crime law are mimetic (copying another department), normative (driven by professional standards about training and community social movement pressure), and actuarial (affected by the demands of the crime data collection system). Together these findings paint a picture of policing organizations as mediators between law‐on‐the‐books and law‐in‐action that are embedded in interorganizational networks with other departments, state and federal agencies, professional bodies, national social movement organizations, and local community groups. The implications of an interorganizational field perspective on law enforcement and implementation are discussed in relation to existing sociolegal research on policing, regulation, and recent neo‐institutional scholarship on law.