Babble: A Theater in Justice and Discourse

The world studied by empirical criminal justice research is babble—a congeries of voices whose meanings represent many normative worlds. Our research designs provide a frame for the babble, and our statistics codify and simplify it. We provide analytic portraits of it and, using the substantive language of crime control, give those portraits meaning. Yet, those meanings are located in a crime control discourse that de-legitimizes and destroys those normative worlds. This paper, an interpretive montage, is a collection of fractured narratives assembled to show that interpretation has something to offer the way we think about knowledge production in the field of criminal justice. It is also a cautionary tale to students in criminal justice, to remember that our scientific abstractions are an abstraction from the underlying realities of human life, not a “deeper” or in some way more real understanding. Our aim is to move the babble—the humanity from which the voices emerge—back into the foreground of justice research.

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The Organized Irresponsibility Principle and Risk Arbitrage

In an age of accelerating wealth at the very top and accelerating risks at the bottom, there is a clear disjunction between the flow of social benefits and social damages produced by different actors and their share of these respective benefits and damages. Yet, the specific processes that generate the dualization of tracks of accumulation of rewards or accumulation of risks and precarity are still up for debate. In tackling this dual process in a way that is attuned to the critical contribution of contemporary forms of the law to this uneven accumulation of wealth and of risks, this paper focuses on organized irresponsibility—where individuals can cumulatively contribute to risks, but avoid individual culpability—and how relations of organized irresponsibility provide extensive opportunities for risk arbitrage. Risk arbitrage is correspondingly a process where actors, whether it be individuals or larger organizations, can produce social risk, appropriate benefit from these risks, and disproportionately avoid the consequences of the risks so as to benefit from the overall “cycle of reward and risk”—even if society as a whole is worse off. The paper identifies organized irresponsibility as fundamentally undergirded by mismatches between existing configurations of law and the existing complexity of the processes of the production of social goods and risks. This paper proceeds to show how gaps in the law enable the organized irresponsibility principle—that given a level of risk production, the greater the number of actors involved and the greater complexity between causes and the risk’s impacts, the less overall culpability that tends to be assigned. It then shows how the organized irresponsibility principle enables relationships of risk arbitrage that intensify contemporary risk and inequality.     

论新闻底线道德的法律运作

新闻道德失范是当前我国新闻媒体面临的一个重大问题。近十年来国内6次媒介调查结果显示,新闻道德失范的危害性极大,经由自律路径根治新闻道德失范几乎不可能。从道德分层理论、道德与法律关系、道德的现实境遇以及新闻道德本身的特性分析,新闻底线道德的法律运作是必要的,也是可能的。道德的法律运作的主要方面并不是在何种程度下触犯道德规范该受何等惩罚的量化问题,更重要的是,它应该对某些新闻职业道德概念作一个明确而具体的定义。同时,我们也必须仔细考虑违犯新闻道德规范后进行救济的多种可能性。     

Dispossession and disalienation: The fulfillment of life in Ursula LeGuin's The Dispossessed

For Caleb

In The Dispossessed, Ursula LeGuin imagines a non‐authoritarian society that privileges freedom and centers the individual's realization of her creative potentials in social context as the means to achieve the highest functioning, least repressive society. The concept central to this imagination of freedom and the ‘good life’ as expressed in her anarchic vision is that of disalienation, in the Marxist sense. In theorizing an anarchic society, whether or not a particular aspect of social organization is disalienating becomes for LeGuin the key criterion for assessing and determining the human efficacy of, in particular: the organization of work; the relationship between self, society, and nature; and the distribution of both social responsibilities and resources. This paper explores how LeGuin measures the alienating effects of a range of socio‐economic institutions, practices, and bodies of knowledge—from how we organize work, to how we establish the state and its governing power, to how we think about time—highlighting her critique of the alienating structures of our culture and the way they curtail human creativity and disarm individuals from developing freely and fully, that is, in a way that would benefit society as a whole and promote individual happiness.     

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.     

浅析交叉询问的运行机制问题——对我国证人质证方式的启示

交叉询问是我们耳熟能详的字眼,对于其具体的规则内容,我们也非常熟悉。本文将焦点集中于交叉询问的运行机制问题,即何种条件能使交叉询问发挥其最优价值。当前,我国庭审中证人质证的方式虽基本具备了交叉询问的外壳,但其功能性价值却收效甚微,这是令人迷惘之处。笔者认为,解决问题的前提是先要明确交叉询问的运行机制,只有这样方能解我国＂交叉询问＂流于形式之惑。故本文从交叉询问的案件范围、运行条件两方面进行分析,继而将我国证人质证方式之弊病呈现于眼前,弄清两种质证方式运行环境之差别,进而得出我国证人质证方式合理构建之框架思路。     

The Limitations of a Multilingual Legal System

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.     

IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL SYSTEM

Now Doniger paced, using Kramer as an audience of one, "We are all ruled by the past, although no on understands it. No one recognizes the power of the past" he said, with a sweep of his hand.
"But if you think about it, the past has always been more important than the present. The present is like a coral island that sticks above the water, but is built upon millions of dead corals under the surface, that no one sees. In the same way, our everyday world is built upon millions and millions of events and decisions that occurred in the past. And what we add in the present is trivial.     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

当代中国法律本质理论研究重述

当代中国法理学的发展与法律本质理论的变迁与进步有着千丝万缕的联系。我国学者从坚持法律的阶级性,到认可法律是阶级性与社会性的统一,再到承认法律本质的层次论,法律本质理论在争鸣和反思中不断丰富。在此基础上,本文从研究意义、逻辑起点、基本工具、经世目的等方面对法律本质研究进行了再思考,最终认为,正义才是法律的本质。     

法学教育中职业教育的定位与培养

随着我国的法学教育不断繁荣,法学教育的培养方式引起了法学界的重视,我国的法学教育有人认为属于通识教育,有人认为应定位于职业教育。笔者认为我国的法学教育既有通识教育的一面,又有职业教育的成分,二者均不可偏废,在此基础之上寻求适合的培养方法。     

Hearing Voice: A Theoretical Framework for Truth Commission Testimony

The article proposes a new way of thinking through truth commissions by discerning the manner in which they usher in new political configurations through voices and vocalizations. It contributes to our understanding of truth commissions by way of proposing a pragmatic ontology of bonds between the body, voice, and testimony by elucidating the central features that make them vocal assemblages, composed of five sub-institutional capacities: (1) they affect and are affected by bodies in a complex topological relation; (2) they are driven by an apology, which itself proffers a non-human body of transformation; (3) they potentiate reconciliation through spontaneous vocalizations; (4) they are ontogenetic openings that reassemble national pasts, presents, and futures; and (5) they are temporally experiential predecessors to political action. While victim testimony is taken as a historical crowning of the edifice for nations seeking to mend their past injustices, I contend that public reparation flourishes only if the state is open to the alternative orientations the voice proffers—that is, following recent observations of transitional justice, truth commissions have the potential to seek out alternative context-specific forms of justice in place of a universal law of reconciliation. By way of a brief discussion of Aboriginal artist K.C. Adams’ diptych series, Perception, the article proposes that voices pose a nuanced figuration of auto-affection as a communicative possibility towards the (re)presentation and (re)invention of the (survivor) self.     

清末修律时期诉讼法律思想评析

诉讼法律思想是清末修律时期新法律思潮中的一股，当时的中国法学家开始对诉讼程序正义、独立编纂诉讼法典、刑事诉讼与民事诉讼分列编纂有了初步认识。他们的思想在当时虽然具有一定的前瞻性、开拓性，但也不可避免地存在时代局限性。对清末诉讼法律思想的研究，促使我们进一步思考：在司法改革的道路上既要大胆吸收外国先进的东西，又要对我们的传统进行合理的改造。     

In Defense of Patient-Centered Theories of Deontology: A Response to Liao and Barry

S. Matthew Liao and Christian Barry argue that the patient-centered approach to deontology that I have developed—the restricting claims principle (RCP)—‘is beset with problems.’ They think that it cannot correctly handle cases in which a potential victim sits in the path of an agent doing what she needs to do for some greater good, or in which a person’s property is used to benefit others and harm her. They argue that cases in which an agent does what would be permissible but acts on a malicious reason show that agent intentions, rather than patientclaims, are fundamental to deontology. And they claim that the RCP presupposes the means principle in a way that shows that it is not really offering anything new. I argue here that all of these charges are mistaken. Doing so allows me to offer important refinements to the RCP, to highlight two common mistakes in reasoning about cases, and to set challenges for agentcentered approaches to deontology.

     

Police,Crime and the Problem of Weak Instruments: Revisiting the “More Police,Less Crime” Thesis

Objectives

A key question in the general deterrence literature has been the extent to which the police reduce crime. Definitive answers to this statement, however, are difficult to come by because while more police may reduce crime, higher crime rates may also increase police levels, by triggering the hiring of more police. One way to help overcome this problem is through the use of instrumental variables (IV). Levitt, for example, has employed instrumental variables regression procedures, using mayoral and gubernatorial election cycles and firefighter hiring as instruments for police strength, to address the potential endogeneity of police levels in structural equations of crime due to simultaneity bias.

Methods

We assess the validity and reliability of the instruments used by Levitt for police hiring using recently-developed specification tests for instruments. We apply these tests to both Levitt’s original panel dataset of 59 US cities covering the period 1970–1992 and an extended version of the panel with data through 2008.

Results

Results indicate that election cycles and firefighter hiring are “weak instruments”—weak predictors of police growth that, if used as instruments in an IV estimation, are prone to result in an unreliable estimate of the impact of police levels on crime.

Conclusions

Levitt’s preferred instruments for police levels—mayoral and gubernatorial election cycles and firefighter hiring—are weak instruments by current econometric standards and thus cannot be used to address the potential endogeneity of police in crime equations.

     

THE UNREPENTANT HORSE‐SLASHER: MORAL INSANITY AND THE ORIGINS OF CRIMINOLOGICAL THOUGHT*

This paper raises questions about the origins, definition and nature of criminological knowledge by seeking to identify the earliest examples of scientific criminological thought. Pushing the story further back in time than previous studies of criminological history, it proposes a way to think about criminology before criminologists—that is, efforts to study crime scientifically before the emergence of specifically criminological discourses and before the formation of the professional specialization of criminologist. The roots of scientific criminological thought lie in late 18th‐ and early 19th‐century discourses on the phenomenon of moral insanity, or uncontrollable, remorseless criminal behavior. Examination of these texts reveals both the origins of criminological knowledge and the birth of idea that crime can be studied scientifically.     

The Indefinable Concept of Terrorism

As the concept of terrorism fulfils multiple functions, thebetter way to think of terrorism is not as a crime but as adifferent dimension of crime, a higher, more dangerous versionof crime, a kind of super-crime incorporating some of the characteristicsof warfare. There are at least eight primary factors that bearon terrorism: the factor of violence; the required intention;the nature of the victims; the connection of the offender tothe state; the justice and motive of their cause; the levelof organization; the element of theatre; and the absence ofguilt. However, one cannot draw from these variables a simple(or indeed even a complex) definition of terrorism. The reasonis that not all the factors apply all the time. Any proposeddefinition produces counterexamples. The way to think aboutterrorism is, therefore, to become aware of all the relevantfactors but not to expect that they will all be fulfilled inany particular case. The specific cases of terrorism are relatedthe way the members of a family are related. Most, but not all,might have the same eye shape. Others might have hair colouror the shape of their nose in common; still others might betall or short. One should try to picture a series of overlappingsets in which no set intersects with all the others. That isthe way our intuitions of terrorism operate.     

Victim and Society: Sharing Wrongs, but in Which Roles?

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial.     

Representation through Participation: A Multilevel Analysis of Jury Deliberations

Fully participatory jury deliberations figure prominently in the idealized view of the American jury system, where balanced participation among diverse jurors leads to more accurate fact‐finding and instills public confidence in the legal system. However, research more than 50 years ago indicated that jury‐room interactions are shaped by social status, with upper‐class men participating more than their lower‐class and female counterparts. The effects of social status on juror participation have been examined only sporadically since then, and rarely with actual jurors. We utilize data from 2,189 criminal jurors serving on 302 juries in four jurisdictions to consider whether—and in what conditions—participation in jury deliberations differs across social groups. Our results indicate the continuing importance of social status in structuring jury‐room interactions, but also reveal some surprising patterns with respect to race and gender that depart from earlier research. We also find that contextual factors including location, case characteristics, and faction size shape the relationship between social status and participation. We conclude with a critical discussion of our results and urge other researchers to take into account contextual factors when examining how individual juror characteristics shape what happens inside the jury room.     

Vesting Agent-Relative Permissions in a Proxy*

We all have agent-relative permissions to give extra weight to our own well-being. If you and two strangers are drowning, and you can save either yourself or two strangers, you have an agent-relative permission to save yourself. But is it possible for you to ‘vest’ your agent-relative permissions in a third party – a ‘proxy’ – who can enact your agent-centered permissions on your behalf, thereby permitting her to do what would otherwise be impermissible? Some might think that the answer is ‘no’; it is definitive of agent-centered permissions that they apply only to the individuals ineliminably referenced in the content of that reason, which means that they lack reason-giving force for any ostensible proxy. The purpose of this paper is to (i) show that vesting agent-relative permissions is indeed possible, (ii) provide an account of how agent-relative permissions are vested by considering the structure of rights more generally, and (iii) show that we have a right to vest such permission in this way.