DEVELOPMENT AND FRACTURE OF A DISCIPLINE: LEGACIES OF THE SCHOOL OF CRIMINOLOGY AT BERKELEY

In the early twentieth century, the University of California—Berkeley opened its doors to police professionals for instruction in “police science.” This program ultimately developed into the full‐fledged School of Criminology, whose graduates helped shape American criminology and criminal justice until well into the 1970s. Scholarship at the School of Criminology eventually fractured into three distinct traditions: “Administrative criminology” applied scientific methods in pursuit of refining law enforcement practices, “law and society” coupled legal scholarship with social scientific methods, and “radical criminology” combined Marxist critiques of the state with community activism. Those scientific traditions relied on competing epistemic premises and normative aspirations, and they drew legitimacy from different sources. Drawing on oral histories and archival data permits a neo‐institutional analysis of how each of these criminological traditions emerged, acquired stability, and subsided. The Berkeley School of Criminology provides fertile ground to examine trends in the development of criminal justice as a profession, criminology as a discipline and its place in elite universities, the uncoupling of criminology from law and society scholarship, and criminal justice policy's disenchantment with the academy. These legacies highlight how the development of modern criminology and the professionalization of American law enforcement find precedent in events that originate at Berkeley.     

The violence of silence: some reflections on access to information, public participation in decision-making, and access to justice in matters concerning the environment

The proposition put forth in this paper is that whether—and the extent to which—harm or potential harm to the environment (its natural resources, living beings, and their ecosystems) is identified, resisted, mitigated, or prevented is linked to the nature and scope of public access to information, participation in governmental decision-making, and access to justice—which are often referred to as “environmental due process” or “procedural environmental rights.” Using examples in the United States of attacks on law school clinics and denial of standing in court, this paper argues that restrictions on public access to information, participation in decision-making, and access to justice create legacies and “cultures of silence” that reduce the likelihood that future generations will be willing and able to contest environmental harm.     

Measuring Procedural Justice in Police-Citizen Encounters

Procedural justice has dominated recent discussions of police interactions with the public. It has mostly been measured from the perspective of citizens (using surveys or interviews), but several important questions about predictors and outcomes of fair police treatment are best answered using direct observations of police-citizen interactions. Building on prior observational studies, we develop and validate an instrument for measuring procedural justice as it is exercised by the police in the natural setting of their encounters with the public. In doing so, we adopt a “formative” rather than the common “reflective” approach, based on the assumption that specific behaviors that make up procedural justice do not reflect a single underlying construct but rather form one. We justify this approach and validate our instrument accordingly. We also discuss the implications of our measurement for future research on procedural justice in police behavior.     

The politics of race and juvenile justice: The “due process revolution” and the conservative reaction

Through the prism of race, this article analyzes the social structural and political context of juvenile justice law reforms over the past half century. Throughout the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on recalcitrant southern states that still adhered to a segregated Jim Crow legal regime, and these norms provided the impetus for the Supreme Court's juvenile court “due process” decisions in the 1960s. The article then analyzes sociological, criminological, racial factors, media coverage, and political dynamics of the 1970s and 1980s that contributed to the “get tough” legislative reformulation of juvenile justice policies in the 1990s. During this period, conservative Republican politicians pursued a “southern strategy,” used crime as a code word for race for electoral advantage, and advocated “get tough” policies, which led to punitive changes in juvenile justice laws and practices and have had a disproportionate impact on racial minorities.     

Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited

A partial replication of Jack Katz's (1982 ) Poor People's Lawyers in Transition, this article explores the manifestations and consequences of professional marginality of legal aid lawyers. Based on thirty‐five interviews with poverty attorneys and interns in Chicago, the authors show that scarce material resources and unclear expectations continue to give rise to the marginalization of this segment of the legal profession. The authors analyzed ideological, task, status, and material dimensions of attorneys' professional marginality. With no access to reform litigation, central to the legal aid “culture of significance” in the 1970s, present‐day poverty lawyers seek new ways to cope with marginality. The authors argue that these lawyers' coping strategies have many negative consequences. Thus, over time, poverty lawyers' deep engagement with clients, ideals of empowerment, and social justice orientation give way to emotional detachment, complacency, and an emphasis on “making do” within the constraints of the system.     

A Practical Approach to Evaluating and Improving Juvenile Justice Programs

For more than a decade, the juvenile justice field in the United States has been dominated by the seventh “moral panic” over juvenile delinquency. This panic led to an overreaction to juvenile delinquency by legislators and juvenile justice officials. The main consequence is a “crisis of overload” in many state and local juvenile justice systems across the country. Tools are available to help juvenile courts effectively manage the overload of court clients. Most important, a new method has been developed for evaluating existing programs against research‐based standards that have been synthesized from juvenile justice program evaluations. This tool enables states and localities to take a practical approach to improving juvenile justice system programs.     

解读刑事法治

刑事法治是法治的根本标志之一 ,而刑事法治就意味着以刑法限制国家的刑罚权 ,罪刑法定原则也就成为了刑事法治的必然首选。而我国传统的法律文化认为 ,刑法是阶级统治的工具 ,是无产阶级专政的“刀把子”。因此 ,要把我国建设成为一个现代的社会主义的法治国家 ,除了健全法律制度之外 ,更重要的是 ,我们必须更新观念 ,正确认识刑法的功能 :刑法不仅保护国家的利益、维护社会的稳定 ,也保护公民个人的合法权益。刑法是人权保障的“大宪章”。     

The Reshaping Effects and Limitations of the Judicial AI

Artificial Intelligence (AI) application in the judiciary has initiated the historical process of moving from access to justice (ATJ) to “visible justice” and has profoundly changed the judicial operation mechanism. The judiciary’s visualization, codification, modularization, and intellectualization are reshaping the judicial procedure and greatly improving the efficiency of intelligent justice. But Judicial AI (JAI) still has its inherent limits. It is not easy to achieve absolute objectivity and accuracy in algorithmic decision-making, and in more complex cases, JAI can promote formal justice but not substantive justice. The judiciary’s AI optimization and reshaping effect should be developed simultaneously with risk prevention. It is necessary to establish corresponding regulations and relief mechanisms for algorithmic decision-making and to infuse the concepts of openness, fairness, and responsibility to promote science and technology for goods and positive development of intelligent justice to realize “visible justice.”     

Tolerance and Liberal Justice

Tolerance, the mere “putting up” with disapproved behaviour and practices, is often considered a too negative and passive engagement with difference in the liberal constitutional state. In response, liberal thinkers have either discarded tolerance, or assimilated it to the moral and legal precepts of liberal justice. In contradistinction to these approaches I argue that there is something distinctive and valuable about tolerance that should not be undermined by more ambitious, rights‐based models of social cooperation. I develop a conception of tolerance as a complementary principle and an interim value that is neither incompatible with, nor reducible to, rights‐based liberalism. Tolerance represents a particular, non‐communitarian expression of the general dictum that the liberal state, having released its citizens into liberty, rests on social presuppositions it cannot itself guarantee.     

Falling Short of Constitutional Norms: Does “Normative (In)Congruence” Explain the Courts' Inability to Promote the Right to Water in South Africa?

In South Africa, municipal noncompliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis,” arguing that the rule of law can accommodate social justice if it demands normative congruence alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of normative incongruence that impedes the pursuit of social justice, even as courts compel congruence with formal rules.     

Access and allocation in climate change adaptation

As climate change impacts become increasingly apparent, adaptation becomes increasingly urgent. Accordingly, adaptation to climate change has shifted towards the centre of attention in both policy and research. In this article, we review the last 10 years of adaptation research (2008–2018), with a focus on work within the Earth System Governance network. We use the lens of access and allocation to structure our review and examine how adaptation affects, and is affected by, access to basic needs, basic rights, and decision-making on the one hand, as well as allocation of responsibilities, resources, and risks on the other. We find that questions of justice, equity, and fairness are fundamental to all dimensions of adaptation. The access perspective, for example, suggests that we need to assess vulnerability, understood broadly, while the allocation perspective focuses on questions of responsibility for being vulnerable, e.g. when people live, or move to, hazard-prone areas exposed to climate risk. This also relates to questions of who is responsible for selecting, implementing, and funding adaptation measures. Overall, we find that the framework of “access and allocation” and its subcategories offer a detailed approach to adaptation and adaptation research, but that it is not intuitive. The notion of “climate justice” seems to resonate more with both academic and policy debates.

     

“卡迪”模式与刑事公正司法的实现

从“有法必依”到“公正司法”喻示着一种刑事司法观的应然转变:放松了司法者对法律文本本身严格服从的要求,更加强调文本之外的个案公正、合情理等实质合理性依据。这对破解当下具有普遍性的法条主义裁判思维,无疑是一种很好的政策支持和启发。按照罪刑法定原则本意进行合乎逻辑的推演,绝不能推导出“法有明文规定即可定罪处罚”的结论。韦伯关于中国古代司法系“卡迪”模式(即“非理性”)的论断具有一定的事实依据及合理性,这种卡迪模式对实质公正的追求具有目的正当性,不宜将此简单视为“恣意司法”的代名词,其中体现的能动性判断具有司法出罪维度的意义。在目前刑法体系下,法的公正价值与法的安定性并不存在冲突,出罪的理论依据与规范依据完全可以得到恰当融合,但在法适用中需要缓和法的命令性要求。恰当的说理论证是嫁接法的安定性与个案公正的纽带,该过程实际上是将合情理、合目的等价值考量揉入刑法文本的理解、适用及说理论证过程当中。     

Is It the What or the How? The Roles of High‐Policing Tactics and Procedural Justice in Predicting Perceptions of Hostile Treatment: The Case of Security Checks at Ben‐Gurion Airport,Israel

What affects perceptions of hostile treatment by police, characterized by feelings such as humiliation and intimidation? Is it what the police do to the citizen, or is it about how they do it? The important effects of procedural justice are well documented in the policing literature. Yet, it is not clear how high‐policing tactics, coupled with procedural justice, affect one's sense of hostile treatment: is it the case that what the police do does not matter as long as they follow the principles of procedural justice, or do some invasive or unpleasant tactics produce negative emotions regardless of the amount of procedural justice displayed by the officer? In the present study we examine this question in the context of security checks at Ben‐Gurion Airport, Israel. Using a survey of 1,970 passengers, we find that the behavioral elements of procedural justice are an important antidote, mitigating the negative effects of four “extra” screening measures on the perceived hostility of the checks. At the same time, two security measures retain an independent and significant effect. We discuss the implications of our findings and hypothesize about the characteristics of policing practices that are less sensitive to procedural justice.     

Social Justice and Individual Ethics*

Abstract. If one is committed to a “Rawlsian” conception of justice, is one not also necessarily committed to a “Christian” personal ethics? MOE explicitly, if one believes that social justice requires the maximinning of material conditions, should one not use one's time and resources as well as one can in order to assist the poorest? The paper offers a very partial answer to these questions by arguing for the following two claims: (1) Contrary to what is implied by some egalitarian critics of Rawls, the idea of a well-ordered society does not require maximin-guided choices at the individual level, and hence leaves room for legitimate incentive payments. (2) Despite Rawls's own neglect of this fact, a limited form of patriotism does constitute an individual “natural duty” following from a commitment to maximin social justice.     

The Hidden Arm of the Law: Examining Administrative Justice in Gun Carry Licensing

Responding to calls to “decenter” American penality beyond the carceral apparatus, this article ethnographically examines administrative process and dissects how it interlocks with criminal justice. To do so, it draws on an admittedly unusual, but theoretically generative, case: administrative gun boards, charged with issuing, denying, revoking, and suspending licenses to conceal carry a firearm. While scholars have examined gun ownership and gun carrying as a social practice, less attention has been paid to gun licensing as a state practice. Drawing on observations of over 900 cases from gun board meetings in two counties in Michigan, this paper examines how administrative process mimics, supplements, and facilitates criminal justice through three mechanisms: procedural pains, in which administrative process resembles criminal justice; parallel punishment, in which administrative process supplements criminal justice through withholding of benefits, entitlements or licenses; and valve‐turning, in which administrative process funnels, or threatens to funnel, claimants into the criminal justice system. Revealing how administrative process and criminal justice become mutually reinforcing, the findings extend and integrate scholarship that shows the material, symbolic, and psychic implications of criminal justice contact, on the one hand, with the increased tendency of administrative contexts to resemble criminal justice institutions, on the other.     

PROMOTING THE PROCEDURAL JUSTICE IN CHINA

Maintaining social justice is the fundamental goal of legal systems. In Chinese, the compositions of characters have symbolic meanings, and the word “law” has the meaning of “as even as water” and “getting rid of unevenness.” It is true that people have different understandings as to the meaning of justice under different social conditions and at different times in history. However, regardless of time and place, justice has been the goal that is pursued in judicial activities.     

Law‐Linked Justice and Existence‐Linked Justice

Abstract. Justice as a manifestation of “the just” is an evasive concept. On the one hand there is the law, an operation run by professionals. On the other hand there are the citizens the law is meant for. Generally speaking the law strives for justice. But the law has to protect many different interests and must work through legal devices. Therefore the justice that emerges from it is necessarily a legal compromise. For the citizens the legal rules are a given reality. Generally they will agree that the law is there to achieve justice but legal arguments that justify a rule or decision cannot have the same value for them. In cases that affect them personally, justice will be a personal, existential experience, which may be incompatible with legal justice. It is hard to keep these two forms of justice under one roof. In order to make this easier this paper proposes a conceptual split between “law‐linked justice” and “existence‐linked justice.” It is argued that the law cannot in truth to its rational origin ignore the citizens’ experience of justice, out of the ordinary as they may be.     

THE MEDICAL MODEL IN CORRECTIONS Requiescat in Pace Requiescat in Pace

The medical model for corrections, confidently espoused by several generations of behavioral scientists although never empirically validated, is now reeling under attacks from an interdisciplinary (though unorganized) army of critics. Attacking its basic premise (that the offender is “sick” and con be “cured”). the new penologists advocate a justice model based on individual responsibility with uniform penalties consistently imposed for like crimes. Out would go the indeterminate sentence, virtually unlimited judicial discretion, parole, and coerced participation in rehabilitation programs. Deterrence, retribution, and incapacitation would be restored as respectable rationalizations for imprisonment; but in general long prison terms would be reserved only for the habitually violent.     

儒家孝义思想对传统中国国家司法主义的影响——以“复仇”制度为论域的思考

“复仇”制度作为宗法伦理社会的伴生物,孝义是其得以产生并持续存在的精神基础。离开了“孝”,“复仇”制度便不可能产生和长期存在下去。在对“复仇”的态度上,各朝代的统治者从一定程度的肯定到逐步的限制,到最后的明令禁止“复仇”。其态度的变化反映了儒家孝义思想与传统中国国家司法主义之间矛盾的日益凸显。虽然“复仇”制度在国家司法主义的挤压下活动的空间大大的萎缩,但对“复仇”制度禁而不止的现象却与封建社会相始终。在法治现代化进程中,破除“人情大过国法”的观念,除了在理论上进行宣传“法律至上”的观念,在全社会树立法律意识以外,更为根本的是加速我国社会从传统的农业社会向以市场经济为特征的工业社会的转型。     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)