The Central Park Jogger Case-Police Coercion and Secrecy in Interrogation

Abstract

The prosecution and recent legal reversals in the New York “Central Park Jogger” case are discussed with a focus on the preoccupation with crime in US society and concerns regarding racial discrimination in the legal system. It is argued that the inherently coercive nature of interrogation, and the secrecy that surrounds custodial interrogation, create conditions that are ripe for abusive treatment. The phenomenon of false confession is presented and discussed with regard to the Central Park Jogger and other cases. The author advocates the recording and preservation of the entire period of custodial questioning so that there is an objective record of the interrogation methods that lead to “confession” statements.     

The Challenge of Universal Norms: Securing Effective Defence Rights Across Different Jurisdictions and Legal Cultures

This article considers the contribution of comparative empirical research in shaping best practice norms for custodial legal advice, and helping to address challenges in their implementation. It traces the role of ECtHR decisions and EU Directives in developing transnational norms to strengthen suspects’ right to legal assistance. Recognizing how these norms are translated into the national context, it considers the value of comparative empirical and socio‐legal research in helping to develop legislative and training measures; how roles and responsibilities are shared out in different legal systems and traditions; and practical arrangements that facilitate or inhibit the effectiveness of custodial legal advice in practice. There is a tension between framing transnational norms that are sufficiently universal to attract support, without being so broad as to lack any transformational force, and sufficiently detailed to ensure respect for core protections without imposing legal requirements too rigid and difficult to be absorbed into diverse processes of criminal justice.     

中国的租界与法制现代化——以上海、天津和汉口的租界为例

中国大地上的法制现代化进程始于租界。租界当局通过大量移植现代法制,使中国租界的法制率先实现现代化。租界的租地规定在实现法制现代化过程中起着重要作用,主要表现为:为植入现代法制奠定了地域基础;为确立租界内的自治机构提供了法律依据;为直接植入现代法制作了明文规定等。租界法制优于中国传统法制,主要表现为:具有现代的法规结构;具有现代的法制语言;具有现代的审判制度;具有现代的律师制度等。在中国租界与法制现代化的问题中,还有一些值得关注的方面,包括:法制现代化的发展很不平衡;租界法制中有歧视华人的因素;租界法制有明显的两面性等。     

Legal Autonomy as Political Engagement: The Ladakhi Village in the Wider World

Local systems of law are constantly forced to adapt to powerful external legal orders. As well as employing tactics of resistance and accommodation, some communities respond by maintaining boundaries around their legal sphere, safeguarding a measure of judicial autonomy. This article examines one such instance, from the Indian Himalayas. It argues that, much more complex than a case of domination and resistance, this autonomy represents a long history of deference and distance toward external forces. The maintenance of legal autonomy ultimately represents community ontology, but it is also a means of engaging with wider forces within the modern world.     

Habermas on Nationalism and Cosmopolitanism

After drawing a distinction between a cosmopolitan attitude and institutional cosmopolitanism, this paper reconstructs Habermas's account of the relationship between morality and law in order to argue that this account can be the basis of a cosmopolitan attitude which, although insufficient, on its own, to ground cosmopolitan institutions, can, nonetheless, motivate interest in institutional cosmopolitanism. The paper then examines Habermas's proposal for institutionalizing a system of cosmopolitan governance. It distinguishes and explores the reach and limitations of three arguments in favor of institutional cosmopolitanism not always adequately differentiated in Habermas's work: (a) an argument from the weakness of the nation state, (b) an argument from the democratic deficit of nationalism, and (c) an argument from the state's incapacity to guarantee human rights.     

Human rights is not enough: The need for demonstrating efficacy of an ethical approach to interviewing in India

Purpose. The present study compared attitudes about Human Rights (HR) and the advocation of coercive interviewing practices amongst Indian Police Officers, Offenders and a sample from the General Public. Method. 100 Police Officers, 50 Offenders and 50 members of the General Public completed a questionnaire that assessed their attitudes about the Human Rights of suspects and the use of coercion in suspect interviews. Results. Police Officers and the Public accepted both custodial violence and the use of intimidating interrogation strategies more readily than Offenders. They were also more prepared to suspend Suspects' Human Rights. Further, individuals who scored high on a coercive belief scale (CBS) were particularly inclined to favour custodial violence and suspend Human Rights. In addition, the self‐reported frequency with which Police Officers used intimidating and non‐intimidating interviewing techniques was related to their beliefs about Suspects' Human Rights and the extent to which they perceived intimidating interviewing methods to be useful. Conclusion. Attitudes about effective interviewing strategies may well be embedded within a broad social context. The effectiveness of a Human Rights Agenda requires that officers in India are informed of the effectiveness of ethical interviewing standards and the practical and legal dangers of using inappropriate methods.     

Alternatives to Public Provision: The Role of Legal Expenses Insurance in Broadening Access to Justice: The German Experience

The literature suggests that the main barriers to justice range from a general lack of knowledge about legal rights, and the related prevalent use of technical language within justice systems (which has led to commentators describing law as a 'leviathan'), to a vague 'fear of the unknown'. In Germany the principal barrier is thought to be the problem of funding legal services. Empirical research indicates that the question of whether or not to consult a lawyer is primarily one of cost, although over one–third of potential clients have little idea about lawyers' fees. To find ways to surmount this barrier is therefore of paramount importance for a modern society. In broad terms, there are three potential attitudes to legal costs: reliance on one's own resources; hope for third party assistance (such as legal aid or pro bono ); and insurance. This article concentrates on the last of these three options, comparing, in particular, the systems in Germany and England and Wales.     

Postapartheid Justice: Can Cosmopolitanism and Nation‐Building Be Reconciled?

South African plaintiffs are suing numerous multinational corporations under the American Alien Tort Claims Act for aiding and abetting apartheid's crimes against humanity. This article argues that Re South African Apartheid Litigation should be understood as a cosmopolitan re-membering of the nation. This interpretation runs counter to theoretical and political presumptions of an inherent antagonism between cosmopolitanism and nationhood. The apparent divide between cosmopolitanism and nation-building is bridged by the concept of victimhood. Insofar as nation-building in South Africa depends upon the restoration of victims, so too is cosmopolitanism victim-centered in its commitment to prevent harm and suffering. The apartheid litigants enact the duality of cosmopolitanism: they press for justice on the basis of cosmopolitan right, yet they do so in part because of their continued marginalization in the "new" South Africa with respect to issues of "truth" and reparation. Following on the "unfinished business" of the South African Truth and Reconciliation Commission, the apartheid litigation illustrates the intersection of cosmopolitanism with national memory and belonging.     

The Heterogeneous State and Legal Pluralism in Mozambique

This article analyzes some of the most salient features of the state and the legal system in Mozambique. I propose the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. The centrality of legal pluralism is analyzed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridization with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilizations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived here as an alternative modernity.     

论中国法学教育改革的目标模式、机制与方法——基于“研究性学习”新视角的分析

中国法学教育正面临着来自政府与市场的双重审视和挑战。在法律教育中不失时机地引入现代西方经典的研究性学习教育理论,致力于法学研究性学习与实践能力培养是中国法学教育改革的关键。我国应改革理论讲授型教育模式,构建四位一体的法学课程体系,创设新型的专门的研究性学习课程板块,形成统分结合的五个一(2+3)法学创新实践模式,开发出基于实践创新能力的法学教育评价指标体系,采用法律问题教学法、主体亲历法、互动教学法、示范效应法、创新项目研究法并使之规范化、正式化。     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.     

Some Remarks on the Notions of Legal Order and Legal System

Abstract
In this paper, the authors discuss some problems related to the existence and identity of legal norms and legal systems. Firstly, two criteria for identification of legal norms are analyzed: linguistic criteria and non-linguistic criteria. Secondly, the dynamics of legal systems and the distinction between legal system and legal order are examined (close to Raz's distinction between momentary legal system and legal system). Based on the logical relations of membership and inclusion, two ways of analysing the change of legal systems are suggested. Thirdly, a criterion for identification of legal orders (from Bulygin) is discussed and it is shown that this criterion does not explain adequately, on the one hand, the existence of some norms, i.e., customary norms; and, on the other, the existence of invalid norms; i.e., unconstitutional norms. The main conclusions of this paper are: (a) the concepts of legal system and legal order could not explain the existence of law in a given society; (b) the concepts of legal system and legal order could be considered models of rational normative systems.     

An effective model of institutional taxation: lunatic asylums in nineteenth-century England

The compulsory establishment of large public lunatic asylums under Act of parliament in the nineteenth century to address the enormous increase in the number of the insane raised legal and practical challenges in relation to their status within the law of tax. As a result of their therapeutic and custodial objectives, these novel institutions required extensive landed property and very specific systems of governance, the fiscal consequences of which potentially undermined those very objectives. This article examines and analyses the nature and legal process of the application of the tax regime to these asylums, concluding that it constituted a rare and effective model of institutional taxation.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

Videotaped Confessions: Panacea or Pandora's Box?

Videotape is becoming an increasingly common means of recording and presenting confessions that are obtained during custodial interrogations. Many scientific, legal, and political experts view this procedural advance as a solution to the growing problem of some innocent people being induced to incriminate themselves when confronted by standard police interrogation tactics. We review a program of research that indicates, however, that the indiscriminate application of videotaping to solve the problem of coerced or false confessions slipping through the system could ironically exacerbate the situation.     

中国法律早期现代化的保守性价值评析

对如何评价中国晚清修律中保守性价值问题进行讨论。对晚清时期中国社会的法律价值重新评价,与西方国家法律现代化进行比较,考虑近代中国国家和民族的政治功利性,考虑民族心理,考虑当时的历史背景、学术水准以及东方国家现代化的共同规律,认为中国早期法律现代化中包含某些保守性价值是具有历史合理性的存在。     

“经理股票期权”的法律分析

经理股票期权在现代企业制度中具有积极作用 ,实践中应正确理解其运行机理 ,并重视为其营造良好的法律环境 ,一方面要适时修改《公司法》、《证券法》等相关法律 ,另一方面 ,在设计公司治理结构的相关制度时 ,真正做到约束与激励并重。     

融贯性与法律体系的建构——兼论当代中国法律体系的融贯化

法律体系的融贯性具有重要意义。它意味着法律体系各个部分之间的相互支持与证立,这是对于法律体系的道德要求,也是法治的目标之一。法律体系的融贯性具有程度差异,它包含连贯性、体系融贯性与理念融贯性三个层次的要求。融贯的法律体系主要是裁判者的诠释活动带来的,它是借助于一定的诠释方法建构出的产物。当代中国法律体系的融贯化面临特殊的难题,只有从制度体系、背景体系与方法体系三个方面努力,才能建构出满足三个层面融贯性要求的法律体系。     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

法制现代化的文化选择

我国正处于从传统的“人治”型社会向现代的“法治”型社会转变的历史时期,如何处理和看待现代法制与传统法律文化之间的关系是我国法制现代化模式选择面临的重要课题。对于传统法律文化资源,要有所扬弃,弘扬优势,趋利避害,乃是我国法制现代化建设的必由之路。