East Meets West in Anti-Money Laundering and Anti-Terrorist Finance: Policy Dialogue and Differentiation on Security, the Timber Trade and ‘Alternative’ Banking

This paper compares and contrasts South East Asian and European Union countries’ perceptions of the priorities for anti money laundering (AML) and anti terrorist finance (ATF) in relation to three industries: security goods and services; the timber trade; and ‘informal’ value transfer and banking services. It might be expected that all countries would equally support each of these aspects of AML/ATF policies, without differentiating between the industries generating the proceeds. As this paper will show, however, historical experiences, contemporary political relations and patterns of trade shape countries’ approaches, resulting in distinctive enthusiasms and reservations. In a nutshell, the EU points most strongly to products and services originating in Asia as posing AML/CTF risks, and locates primary responsibility for monitoring and control as falling within Asia - a projection of risk and responsibility that is reciprocated by Asian countries. Asian countries perceive a need for tighter control of dangerous products exported by the west, for example, small arms and light weapons, and of related money laundering circuits. Asian and European policy makers increasingly articulate concerns over illegal logging and related laundering, however European importers and their governments see responsibilities for this as falling primarily within Asia. Finally, the EU (like the US) perceives high levels of laundering risk in ‘informal’ value transfer/banking services, in which Asian-run businesses have a global competitive advantage. For the future, as the international balance of trade shifts, and as Asia increases its influence in international fora including those concerned with AML/CTF, so the region’s policy preferences may be expected to carry more weight.

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

Rethinking the Notion of a ‘Higher Law’: Heidegger and Derrida on the Anaximander Fragment

The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law.

A Manifesto on Enforcing Law in the Age of ‘Artificial Intelligence’

Building upon A Manifesto In Defense of Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, we, the Transatlantic Reflection Group on Democracy and the Rule of Law in the Age of ‘Artificial Intelligence’, have reconvened to draft a second consensus manifesto that calls for the effective and legitimate enforcement of laws concerning AI systems. In doing so, we recognise the important and complementary role of standards and compliance practices. Whereas the first manifesto focused on the relationship between democratic law-making and technology, this second manifesto shifts focus from the design of law in the age of AI to the enforcement of law. Concretely, we offer 10 recommendations for addressing the key enforcement challenges shared across transatlantic stakeholders. We call on those who support these recommendations to sign this manifesto. The Fifth Edition of The Athens Roundtable on AI and the Rule of Law will take place on November 30th and December 1st, 2023. It will delve into pressing governance challenges posed by foundation models and generative AI across jurisdictions.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.     

Natural Law and the ‘Resistance’: A Normative Approach to the Skywalker Narrative in The Last Jedi

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The motion picture The Last Jedi involves important decisions and actions taken by the...     

‘Indirect amendment’: how the federal department of justice unilaterally alters the text of the constitution of Canada

Since 1957, the Department of Justice of Canada has regularly altered the wording of some sections of the Constitution Act, 1867 in its consolidated versions of the Constitution of Canada, even though neither the Westminster Parliament nor the Parliament of Canada had ever amended these provisions themselves or delegated to the executive the authority to make changes on their behalf. The Department of Justice refers to its practice of altering the text of the Constitution of Canada as ‘indirect amendment’. However, since the Constitution Act, 1982 states categorically that the Constitution of Canada can only be validly amended through one of its five amending formulas, the Department of Justice’s technocratic approach to ‘indirect amendment’ is almost certainly unconstitutional.?Either the Department of Justice should restore the original wording of the text of these sections in its subsequent consolidations of the Constitution Acts and relegate the updated figures or other commentary to explanatory footnotes. Alternatively, the Parliament of Canada should update these sections itself, directly, as a Section 44 Constitutional Amendment. The rule of law depends upon following the Constitution of Canada's amendment procedures properly.     

Decision-making by machines: Is the ‘Law of Everything’ enough?

Machines have moved from supporting decision-making processes of humans to making decisions for humans. This shift has been accompanied by concerns regarding the impact of decisions made by algorithms on individuals and society. Unsurprisingly, the delegation of important decisions to machines has therefore triggered a debate on how to regulate the automated decision-making practices. In Europe, policymakers have attempted to address these concerns through a combination of individual rights and due processes established in data protection law, which relies on other statutes, e.g., anti-discrimination law and restricting trade secret laws, to achieve certain goals. This article adds to the literature by disentangling the challenges arising from automated decision-making systems and focusing on ones arising without malevolence but merely as unwanted side-effects of increased automation. Such side-effects include ones arising from the internal processes leading to a decision, the impacts of decisions, as well as the responsibility for decisions and have consequences on an individual and societal level. Upon this basis the article discusses the redress mechanisms provided in data protection law. It shows that the approaches within data protection law complement one another, but do not fully remedy the identified side-effects. This is particularly true for side-effects that lead to systemic societal shifts. To that end, new paradigms to guide future policymaking discourse are being explored.     

The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law

Netherlands International Law Review - The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing...     

Law,language, and the power of ‘invisible threats’ of violence against women

Violence, and the threat of violence, is a pervasive feature of women's lives. From high-profile threats in politics to everyday harms such as domestic abuse, violence, threat, and intimidation control women's behaviour and silence their voices. Yet in many cases the pernicious and harmful effect of threat is not captured by the law. Drawing on the work of sociologist Pierre Bourdieu and empirical research undertaken in Northern Ireland, this article analyses the ways in which both objective and ‘incorporated’ social structures generate invisible forces of fear and threat that the law does not see, but that women feel and structure their lives around. The article develops the novel conceptual tool of ‘invisible threats’ to capture threat as harm, to show the relation between threat and gendered (in)securities, and to challenge institutions of the law to respond better to invisible threats as perceived and articulated by women.     

‘Narcoballads’: The Psychology and Recruitment Process of the ‘Narco’

There have been several studies conducted about racist groups, gangs, cults, terrorist and other criminal organisations, but very little has been written about the psychology and recruitment process of the ‘narcotrafficker’. This is because like most criminal organisations, they tend to be secretive and difficult to penetrate by law enforcement, academics and others who wish to study them. Using an audio‐recorded content analysis of ‘narcocorridos’ — ballads glorifying the activities of the ‘narcos’ and describing their successes' — as well as Social Identity and Group theories, the author describes some of the techniques used to recruit individuals into drug cartels; the labels, stereotypes and images of the in-group versus the out-group and the similarities in the socialisation and recruitment process of other criminal organisations. This study shows the recruitment of individuals into drug cartels follow similar patterns to other criminal organisations including the need for power, belonging, respect, security and pride.     

‘More Equitable than the Judgment of the Justices of the Peace’: The King's Bench and the Poor Law 1630–1800

Orders issued by justices operating the poor law in seventeenth and eighteenth century England – orders for removing paupers, orders for the maintenance of bastard children, orders adjudicating poor rate appeals – generated vast quantities of litigation. Most of that litigation was by way of appeal to Quarter Sessions; but a small number of cases went further, to the King's Bench, by way of certiorari. This account examines this litigation phenomenon from several vantage points: from the perspective of the King's Bench (which innovated procedures to regulate certiorari, and which expanded its means of reviewing legal error through the development of the special case); from the perspective of Parliament (which was required to respond to demands by justices that the process be abolished); and from the perspective of contemporary commentators (who were critical of the money wasted by parishes litigating in the King's Bench).     

The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece

This article examines the social organisation of cocaine smuggling in Greece. Emphasis is placed on the involvement of professionals from the shipping industry and actors from the ‘upper society echelons’ who play a pivotal role in the transportation and importation of cocaine to Western Europe and Greece. After considering empirical evidence from a variety of sources, our findings indicate that the cocaine market in Greece is ‘organised’ by a system of collaborative relationships between state, business and civil society actors. It is suggested that to better understand the nature of this illegal market, further research is required to take a closer look into the economic, socio-cultural and political incentives of these actors.     

Diffusion of the Budapest Convention on cybercrime and the development of cybercrime legislation in Pacific Island countries: ‘Law on the books’ vs ‘law in action’

The Council of Europe Convention on Cybercrime,¹ referred to as the Budapest Convention on Cybercrime, has been diffused globally, and is serving as a benchmark or a ‘model law’ for drafting national cybercrime legislation in many countries worldwide. This paper argues that, through the mechanism of ‘state socialization’ combined with incentives, e.g. assistance in building law enforcement capacity, the diffusion of the Budapest Convention has had a profound influence on the development of cybercrime legislation in a number of Pacific Island Countries (PICs).² Some PICs have expressed their great interest in acceding to the Convention and ‘imported’ several provisions from the Convention. This article, nevertheless, contends that these PICs do not seem to consider carefully whether the ‘imported’ law is applicable to their existing law enforcement capacity. It is evident that various domestic factors, such as lack of resources, have deterred the enforcement of cybercrime laws in these countries. As the result, although those PICs would have adequate cybercrime laws ‘on the books’, ‘law in action’ is still feeble.     

‘Inequality of Goods and Lands’ in Mortgaged Democracies: Paradigms and Effects of Global Comparative Law

Liverpool Law Review - The article reappraises the law’s ‘egalitarian commitment’ in an era of global inequality. It upholds that such an egalitarian predicament scarcely squares...     

‘Demonstrative Evidence’: A Genealogy of the Racial Iconography of Forensic Art and Illustration

This essay stages a critique of the unacknowledged racialising visual regimes that inform forensic pathologys typical body charts. In order to disclose these unacknowledged regimes, I stage a genealogy of the racialising iconography that continues to shape forensic pathologys visual texts. In drawing attention to the racialising visual conventions that constitute the contemporary production of caucacentric forensic body charts, I attempt to disrupt the scientifico-objective status of these visual artefacts in order to underscore their ideological effects. By focusing on the ontological/epistemological split between the corporeality of native informants and white knowledge workers, I underscore the white medico-legal professions historical transmuting of other bodies into objects of knowledge. I conclude by outlining the discursive effects of presenting forensic pathologys caucacentric body charts as demonstrative evidence within the court of law.This is an extended version of an essay first presented at the Association for the Study of Law, Culture, and the Humanities Conference, Cardozo Law School, New York University, New York, USA, March 2003. My thanks to Peter Goodrich and Penelope Pether for their generous enthusiasm and support.     

Legal Imaginaries and the Anthropocene: ‘Of’ and ‘For’

Law and Critique - This reflection contrasts the dominant imaginary underlying ‘law of the Anthropocene’ with an imaginary reaching towards ‘law/s for the Anthropocene’. It...