Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment

This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the Athenian model will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law.

Democracy and Justice

Mackies volume is a path-breaking, thorough, and innovative overview of the subject of social choice and its implications for understanding democracy. It is made up of various lines of analysis including historical interpretation, a review of massive numbers of statistical studies and a careful analysis of numerous aspects of the logical proof of Kenneth Arrows Impossibility Theorem. It will be must reading for all who wish to understand democracy given the work in the social choice field over the last 50 years. On the other hand, it has its shortcomings. By focusing on a particular school of attackers of democracy (led by William Riker), the book becomes less balanced and less useful than it might be. Most unfortunately, Mackie does not take the plunge to see what positive elements flow from such related fields as theories of justice. Finally, by avoiding these other fields, the centrality of politics in the pursuit of justice is one of the implications of the analysis that is missed.     

经济民主与社会正义——竞争法的深层底蕴

竞争法的价值追求不应该止于传统的自由和竞争理念,还应当审视自由和竞争之后的深层价值追求:经济民主和社会正义。经济民主是指经济领域内的民主。经济民主理念促使竞争法突破竞争者中心主义,关注多元主体的参与机制,突破禁令模式走向限制强势与扶助弱势相结合的机制。社会正义在经济领域具有特殊的涵义。由于自由竞争无法满足社会正义的要求,需要由政府等公共权力作为社会公意的代言人。政府应从社会正义原则的要求出发在遵循辅助性原则和民主性原则的前提下,为市场竞争制定有效的规范,维护弱势经济主体的基本利益。     

Technology and Criminal Justice

The extent and use of technology in the British criminal justice system is uneven. Two areas are examined; first where technology is used in prisons or by the police, and secondly when it is used to develop new sanctions, as with electronic monitoring, or as attachments to existing sanctions such as drug testing. Technology in prisons is mainly in the form of perimeter security, and in the police through CCTV cameras or databases. In the second the emphasis is on tracker systems which gives the supervisor greater control. Technological development in criminal justice is not without its critics. Some regard existing technological developments with suspicion, seeing them as a means of enhancing control, or as an attack on traditional liberal values, or more importantly as an extension of a form of behaviourism which is concerned only with the observable act. Others note the expensive failures of technology where systems fail to work or are delivered late. It is suggested a Government study is required to examine existing technologies and its likely future impact whether on the criminal justice system generally or on those working within it or as inmates.     

全球化和刑事司法

刑事司法的全球化正在逐步成为现实。而且全球化的进程旨在在世界范围内采取联合行动预防和惩治某些特定的犯罪。然而,刑事司法全球化的构建需要建立在统一的刑事司法文化基础上,与修正的报应模式和法律与秩序模式不同的是,刑事司法全球化必须有整合一致的人权文化。提高个体、政治、社会和经济人权的整体文化,是保障建立刑事司法全球化的最佳途径,它服务于国际公共价值和秩序,同时还致力于社会公正,确保相关人员,特别是被害人和被告人的权利保障。     

联合国刑事司法准则与我国刑事法律改革若干问题

1998年10月5日,我国签署了《公民权利和政治权利公约》。该公约最为明确、集中、具体地规定了联合国刑班司法准则．我们有必要将我国的刑事立法与联合国刑事司法准则相对照．寻找差距．并提出改革、完善的具体措施。从而推动我国刑事法律向前发展。试就涉及刑法、刑事诉讼法方面的问题作了一些探讨。     

Limits of Participatory Democracy in European Governance

The Lisbon Treaty (Article 11) recognises the provision on participatory democracy as a democratic principle of the European Union (EU), thus constitutionally legitimising the involvement of civil society in European governance. However, at least three issues relating to the democratic dimension of this practice remain unresolved. First, it is not possible to specify precisely how the participation of civil society relates to democracy. Second, having established representative democracy as the founding democratic principle of the EU (Article 10), the Lisbon Treaty does not allow assessing the provision on participatory democracy as an independent source for democracy. Third, the putative democratising potential of participation would not be construed independently, not only because representative democracy is defined as the founding principle of the EU but also because participation cannot be thought of as independent from the form of the consultation regime, the constitutional framework and the managerial and technocratic styles of policy‐making.     

复和正义和刑事调解

犯罪自产生以来 ,其恶性随着人类文明的进步而加大 ,相反 ,人类用于对付犯罪的刑罚手段却渐趋轻缓和文明。毫无疑问 ,到目前为止 ,刑罚仍是对付犯罪最为有效的手段之一 ,审判也是解决犯罪问题的主要方式。但由于建立在报应基础之上的刑罚 ,本质上是一种“以恶制恶” ,因此 ,其弊端也是显而易见的。由此 ,在处理犯罪问题时需要引入复和正义 ,并进一步扩大刑事调解范围     

American Criminal Justice Exposed

In The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences, Matthew Kramer argues that none of the standard rationales used to justify capital punishment successfully vindicates it and that a new justification, the purgative rationale, justifies capital punishment for defilingly evil offenders. In this article, it is argued, first, that a version of retributivism that adheres to the lex talionis as Kramer understands it does seem to call exclusively for the death penalty. Second, it is submitted that the purgative rationale is over-inclusive inasmuch as Kramer considers it applicable to certain offenders with abusive or deprived backgrounds, some offenders indoctrinated to adhere to pernicious ideologies that have impelled their crimes, and wrongdoers who have sincerely repented. Third, doubts are expressed about whether the purgative rationale justifies the execution of any offenders. Even if it is true that the continued existence of an extravagantly evil offender represents an affront to humanity, as Kramer suggests, a moral obligation to execute him does not follow. Since repentance is intrinsically valuable and since repentance would extinguish the affront to humanity, the community in which an unrepentant evil offender abides is duty-bound to foster repentance on the part of the offender by imposing banishment or life imprisonment, sanctions that afford the offender the most extensive opportunity for repentance. The community is therefore obligated to impose one of these sanctions instead of capital punishment.     

Assessing Criminal Justice Practice Using Social Justice Theory

In this article, I introduce two of the leading theories of social justice put forth by John Rawls and David Miller. Then, I assess criminal justice practice, from law-making to corrections, in terms of ways in which it is consistent and inconsistent with these theories of social justice. Throughout the article, I also identify ways in which criminal justice practice is inconsistent with social justice. Finally, I make recommendations for reforming criminal justice to make it more consistent with social justice.