Criminal Justice Reform and the System’s Efficiency

This article discusses key issues that affect the efficiency and credibility of criminal justice systems. It discusses the consequences of an ineffective criminal justice system, which include unnecessary delays within the court process, ‘cracked’ or ‘collapsed’ trials, and lack of public confidence. It notes that a successful system must contain strategic, integrated, and sustainable mechanisms that enhance the entire criminal justice process. The article examines a number of initiatives taken by various countries, noting the measurable and sustainable results, while also suggesting ways that these programs could be improved. Finally, the author notes the importance of measuring the outcomes and impact of the suggested initiatives in an effort to promote transparency and accountability, as well as effectively record successful strategies.     

Promoting the Modernization of China’s Governance System and Capacity in Line with the Rule of Law

Since the 18th National Congress of the Communist Party of China (CPC) held in 2012, XI Jinping, General Secretary of the CPC Central Committee, has made a series of vital expositions on the promotion of modernization of the national governance system and capacity in line with the rule of law. The law is the most important tool for governing a country, and the rule of law supports the national governance process and capacity. Promoting the rule of law on all fronts is an essential requirement for developing socialism with Chinese characteristics and promoting the modernization of the national governance system and capacity. Comprehensive law-based governance in all areas should be promoted to advance the modernization of national governance. Furthermore, law-based thinking and methods should be used to address difficulties and challenges faced in this modernization process.     

Normative Principles of China’s Political-Legal System

As a system that is symbolic of contemporary China, the politicallegal system refers to the governance structure that under the leadership of the Communist Party of China (CPC), law-enforcement and judicial agencies and various governance subjects jointly promote a peaceful China initiative and build a China under the rule of law. The historical evolution from the classical rites-law tradition to the modern politicallegal system reflects the consistent political focus and ideological exploration of China’s politicians and thinkers about the national rise and fall. The basic structure of the political-legal system can be divided into three principal groups of relationships, namely, the relationships between various law-enforcement and judicial agencies, the relationships between law-enforcement and judicial agencies and external bodies, and the relationships between the CPC and law-enforcement and judicial agencies. The normative principles concerning these three principal groups of relationships constitute the basic rules for the institutional design and practical operation of the political-legal system. The normative principles of the first group of relationships relate to self-integration, division of responsibilities, mutual cooperation and mutual restraint. The normative principles of the second group of relationships involve prioritizing social autonomy, primary-level governance and front-end governance. The normative principles of the third group of relationships are concerned with macro-leadership, centralized leadership and leadership under the rule of law. The analysis of these three sets of normative principles shows that China’s political-legal system not only follows the universal law and common mechanism of modern national governance, but also accumulates the local experience and unique wisdom of China’s governance.     

Legal Argumentation and Justice in Luhmann’s System Theory of Law

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society.     

Charles Peirce’s Categories and the Growth of Reason

Charles Peirce’s semeiotic is inseparable from his account of the three categories of experience and his metaphysics. The discussion summarizes his account of the categories and considers the way they have ontological implications. These implications are then focused on Peirce’s Apapism, which is his way of referring to a theory of evolution. Finally, some suggestions are offered for a way the semeiotic with the metaphysical implications, especially their relevance for a theory of evolution, propose how Peirce might apply them for questions of jurisprudence.

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Law’s Determinability: Indeterminacy,Interpretative Authority,and the International Legal System

Netherlands International Law Review - Authority claims remain rooted in the antecedent existence of a degree of indeterminacy, in particular in the international legal system, in which a lack of...     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

Who’s afraid of penal populism? Technocracy and ‘the people’ in the sociology of punishment

Contemporary sociologists of punishment have criticized the rising incidence of incarceration and punitiveness across the Western world in recent decades. The concepts of populist punitiveness and penal populism have played a central role in their critiques of the burgeoning penal state. These concepts are frequently sustained by a doctrine of penal elitism, which delegates a limited right to politicians and ‘the people’ to shape institutions of punishment, favoring in their place the dominance of bureaucratic and professional elites. I argue that the technocratic inclinations of penal elitism are misguided on empirical, theoretical, and normative grounds. A commitment to democratic politics should make us wary of sidelining the public and their elected representatives in the politics of punishment. A brief discussion of Norway’s legal proceedings against Nazi collaborators in the mid-1940s and the introduction sentencing guidelines commissions in Minnesota in the 1980s shows – pace penal elitism – that professional elites may variously raise the banner of rehabilitationism or retributivism. While penal elitism may yield a few victorious battles against punitiveness, it will not win the war.     

Responsibility and Control: Fischer’s and Ravizza’s Theory of Moral Responsibility

Law and Philosophy -     

Policing and the Feeling of Safety: the Rise (and Fall?) of Community Policing in the Nordic Countries

A major trend in the Nordic countries is the increasing focus on citizens' perceptions of safety, the enhancement of which is seen as a task for the police. One way to accomplish this has been the introduction of proximity policing. Existing research on the subject from all the Nordic countries is evaluated, with special focus on a comprehensive evaluation of a Danish experiment. The evaluations demonstrate that the concept of proximity policing has had limited success, and it has been abandoned in Finland and Norway. The article concludes by offering some explanations for the lack of success, among these the high level of perceived safety already present in the Nordic countries, the lack of causal relation between police visibility and citizens' perception of safety, and the lack of tradition for citizen involvement in the Nordic welfare states.     

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.     

Agamben’s Grammar of the Secret Under the Sign of the Law

This paper suggests that a grammar of the secret forms a concept in Agamben’s work, a gap that grounds the enigma of sovereignty. Between the Indo-European *krei, *se, and *per themes, the secret is etymologically linked to the logics of separation and potentiality that together enable the pliant and emergent structure of sovereignty. Sovereignty’s logic of separation meets the logic of relation in the form of abandonment: the point at which division has exhausted itself and reaches an indivisible element, bare life, the exception separated from the form of life and captured in a separate sphere. The arcanum imperii of sovereignty and the cipher of bare life are held together in the relation of the ban as the twin secrets of biopower, maintained by the potentiality of law that works itself as a concealed, inscrutable force. But the ‘real’ secret of sovereignty, I suggest, is its dialectical reversibility, the point at which the concept of the secret is met by its own immanent unworking by the critic and scribe under the *krei theme, and subject to abandonment through the work of profanation; here, different species of the secret are thrown against one another, one order undoing the other. The secret founded upon the sacred is displaced by Agamben’s critical orientation toward the immanent: what is immanent is both potential and hiddenness.     

Vulnerabilities in China’s Legal System

Social Justice Research -     

A commentary on the principle of the child’s best interests —the weakness and improvement of marriage and family law

International documents like the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) propose that in mediating on children issues, the best interests of the child should be the primary consideration. In China, the Constitution and the Law on the Protection of Minors have already set out the terms in principle for the protection of minors, however, it has not been defined in the Marriage Law (2001). In order to enforce the commitment of respecting and safeguarding human rights, the child’s best interest principle should be established in marriage and family law, along with amending related provisions.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

An evaluation of the UK’s anti-money laundering and asset recovery regime

This paper describes the UK’s anti-money laundering and asset recovery laws and the aims and objectives behind the regime since the introduction of the Proceeds of Crime Act in 2002. It then evaluates the regime in terms of the amount of criminal assets recovered, its application against organised crime and its impact upon the price of illegal drugs.

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