From a Pluralism of Grounds to Proto‐Legal Relations: Accounting for the Grounds of Obligations of Justice

In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability plays a deeper role: The conditions that ground it feature at the same time among the grounds of obligations of justice. Accordingly, the kind of relation that gives rise to a duty among agents to account for their actions must be in place when obligations of justice obtain. Following on from these remarks I will adumbrate an alternative account of the relation which grounds (enforceable) obligations of justice.     

司法中的伦理解释及其限度——以美国宪法为分析样本

司法中的伦理解释本质上是一种立基于正当性的价值论解释方法，它要求解释者在法律文本语义的最大化范围内，选择和适用最合乎法的制度伦理的含义。伦理解释具有基础性、历史性、体系性和开放性等基本特征，这些特征都是由它所要表达的法的制度伦理赋予并在具体解释方法中展开与呈现的。伦理解释具有局限性：一方面，对法的制度伦理的辨识往往非常复杂，具有不确定性，这就会导致依托制度伦理来解释法律的客观性、正当性发生危机；另一方面，即或已经明确了法的制度伦理，但对它的维系与坚持也具有相当的难度，特别是当法官的个人正义观与法的制度伦理发生冲突时，难度更大，在极端情况下，甚至会使法律的伦理解释成为不可能完成的任务。     

Justice, Sanctioning, and the Justice Model

The justice model has emerged as an alternative to the discredited rehabilitative ideal as a basis for sanctioning policy. Retributivism or just deserts is offered as the primary justification for the criminal sanction in this model, although sometimes in combination with incapacitation and deterrence as companion rationales for sanctioning. Desert is, additionally, an integral component of a sense of justice that is presented as an attribute of the justice model. Desert, both as a rationale for sanctions and as the basis for justice, is drawn from the philosophical models of Immanuel Kant and John Rawls. However, these models have some rather disturbing implications that have not been addressed by proponents of the justice model. A critical examination of them and their implications for criminology is therefore in order.     

Is Coercion a Ground of Distributive Justice?

In his rich and stimulating book, Blake argues (among other things) that comprehensive coercion triggers egalitarian obligations of distributive justice. I argue that (1) coercion is not a necessary condition for egalitarian justice to apply; (2) Blake’s use of a moralised conception of coercion is a mistake; (3) coercion is a redundant member of any set of sufficient conditions that might explain why distributive justice applies; (4) Blake’s emphasis on providing conditions for the exercise of autonomy might support a much more cosmopolitan theory of distributive justice.     

Advancing Justice Through Our Students

One avenue by which criminal justice scholars can advance the discipline is through preparing students to enter the field. Popular commentary and some international analyses suggest that recent college graduates lack in employability skills, and they secure adequate employment at a disappointing rate. When the field of focus is narrowed to criminal justice, however, the picture is less worrisome. Although the data show that our students lag in securing employment in positions that require a bachelor’s degree, our students feel prepared for work, find employment after graduating, and tend to improve their situation when pre-graduation and post-graduation employment are compared. Even so, I encourage justicians to take deliberate actions that will help launch the next generation of professionals into successful careers and lead to positive contributions to the future of criminal justice.     

Climate Change and Global Citizenship

The international climate change regime has failed. Even the most optimistic assessment of action to limit greenhouse pollution in the coming few decades will not prevent calamitous changes in Earth's climate. Arguments for international—that is, interstate—justice that have permeated international negotiations on climate change have been insufficient in fostering robust action by states. Indeed, by diverting all responsibility to states, focusing on international justice has not addressed consumption and pollution by hundreds of millions of affluent people around the world, including many millions living within developing states that have no treaty obligations to limit nationwide pollution. Increasingly, however, it is these individuals that matter: more and more of them who are not now subject to any climate‐related legal obligations are able to afford lifestyles that lead to greenhouse gas emissions and more climate change. This is especially true given the very rapid increase in the numbers of affluent people in the developing world. Bearing this in mind, this article goes beyond the still important questions of international climate justice to explore cosmopolitan or global climate justice. Global justice demands that affluent individuals in both affluent and poor states do much more to limit their pollution of the atmosphere. By being good global citizens, capable persons can help states start the world on a path to reducing the severity of climate change.     

Arbitrary Arbitration: Diverting Juveniles Into the Justice System

Abstract Considerable research has examined the effects of diverting juveniles away from the juvenile justice system. These studies have seldom investigated the possibility that diversion may inadvertently “widen the net.” This article assesses the relationship between diversion and net-widening by evaluating a leading Florida-based diversionary program, and this program's capacity to “create a clientele” in order to justify its very existence. The diversionary program under evaluation herein boasts a 98% nonrecidivist rate among its clients, and is touted as a prototype diversionary program for the nation. The current study results, however, indicate that a majority of youths diverted by this program have committed such trivial acts that entrance into any aspect of the juvenile justice system—even under the guise of a diversionary program—seems unwarranted. The results further suggest that among youths who have committed serious juvenile crimes, most are terminated unsuccessfully from this program, and are returned to the justice system for prosecution.     

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

The Double Paradox of Juvenile Justice

This article considers the history of a century of juvenile justice. Illinois 'invented' the separate 'children's court' in 1899 and this concept was spearheaded in Northern America, Great Britain and continental Europe in the first decades of the new century. However, a century after its foundation the future of the juvenile court is in doubt everywhere in the Western world. Some conclude that there is a cyclical pattern in juvenile justice policies. That proposition is rejected in this article. The proposition of a cyclical pattern also presupposes that there is no real problem at stake in treating juvenile offenders. The main point of this article, however, is that juvenile justice cannot escape trying to solve a very complicated foundational issue. This issue is a double paradox, that is, juvenile justice has to solve two philosophical questions: the justification of punishment and the justification of punishment for non-adults. This diagnosis presents a new conceptual framework for an analysis of the history of juvenile justice.     

Why Listening to Children and Young People is Important in Family Justice

During the last 30 years, there has been a growing body of evidence indicating that children and young people often feel marginalized when their parents are making critical decisions that will shape their young lives, and they are calling for family justice professionals to hear their voices. This article explores the research evidence, examines the relevant theories about child development, and demonstrates how a focus on age‐related competency fails to take account of children's subjective meanings about their lives. The authors consider a model of participation first designed to understand adult participation in government and show how this can be usefully applied to understanding children's participation in family justice.     

Multicultural Justice: Will Kymlicka and Cultural Recognition

Abstract. The article concentrates on Kymlicka's major area of research, i.e., the issue of justice for minority cultures. It deals with his perspective on cultural recognition in a multicultural society, which is grounded on his argument for culture and autonomy. Specifically, it covers issues such as cultural and moral pluralism, the justification for policies of cultural recognition, and the relation between cultural identity and membership. The aim of the article is to emphasise what the dangerous implications could be, in a multicultural society, were policies of cultural recognition to be predominantly or solely founded on liberal values.     

纪念《开罗宣言》70周年:匡扶正义、惩治侵略的法律武器

70年前的开罗会议树立了负责任的大国之间携手合作、匡扶正义、惩治侵略的典范。《开罗宣言》宣告了美中英三国共同对日作战、强制日本侵略者无条件投降的意愿和约定,规定了将台湾澎湖归还中国的承诺,不但是中国人民维护领土主权的法律武器,也奠定了战后亚洲和太平洋地区国际秩序的政治基础。《开罗宣言》符合国际协定构成要素的要求,形式和名称不影响它的法律性质;国际实践验证了它的法律效力,"约定必须遵守"原则和"禁止反言"原则理应得到尊重。今天纪念《开罗宣言》,就是要弘扬惩恶扬善的正义精神,维护国际社会反法西斯侵略战争的胜利成果。     

On Justice

This paper returns to the question of how to think of justice through Teubner’s recent definition of what he calls juridical justice. Juridical justice is defined as distinct from political, moral, social and theological conceptions of justice. Teubner attempts to think of an imaginary space for a juridical justice ‘beyond the sites of natural and positive law’ and searches for a conception of justice as the ‘law’s self-subversive principle’. This article reviews Teubner’s conception of juridical justice and further proposes a distinction between juridical and non-juridical understandings of justice.     

PSJ & I and Integrated Justice

Information technology is changing the way we live and work. Government is not immune to this technology revolution. Emerging information technology now affords justice agencies the opportunity to work together in one integrated justice system. From dispatch and patrol, to arrest and booking, through the identification process and on into the courts, technology is allowing all segments of the justice community to work more efficiently and to work with both more information as well as more accurate information. IBM Corporation's Public Safety, Justice & Identification organization is playing an important role in assisting justice agencies in applying this new technology.In justice agencies around the world,computer aided dispatch and related systems allow more police officers to be where needed more rapidly. Mobile data systems for officers in the field allow them to gather and process information more quickly and accurately, and be back on patrol and available for another call more rapidly. Automated arrest and booking systems free up patrol officers more quickly so they can be back on patrol. These systemsalso allow the arrested person to be processed through the jail system more rapidly, by fewer people. In the courts, electronic case files, automatic document generation, automated scheduling and sophisticated programs for tracking court operations all mean more work can be accomplished faster, with greater accuracy and efficiency, without increased personnel. Most justice agencies today act as independent, yet interdependent entities. Their primary mode of communication is paper. Advances in information technology, together with the adoption of common technical standards and common business definitions, is now allowing justice agencies to integrate their operations by electronically sharing important information. It is through this integration process that justice agencies are making the term, 'justice system' a reality.     

Antinomies and the Automobile: A New Approach to Criminal Justice Histories

In the twentieth century, the antinomy of freedom and coercion served as the dominant paradigm for understanding issues of crime and punishment. Roscoe Pound in Criminal Justice in America (1930) and Herbert Packer in The Limits of the Criminal Sanction (1968) described a tension between the values of individual liberty and general security to explain the problems with the justice system and the public's disagreements over their solution. Historians of twentieth‐century criminal law have also adopted this framework to explain causation and change. This essay argues that an antinomic perspective of criminal justice history, while useful, has obscured important historical questions. A focus on social changes, such as the transformations that the automobile brought about in the commission of crimes and police practices, instead of on contrasting values, offers a different account of how proceduralism became inextricably tied to notions of American freedom in the twentieth century. This approach also historicizes the “paradigm of antinomies” and shows how people in the past, like Pound and Packer, mobilized dualistic thinking, which shaped a criminal legal culture based on an antagonism—both real and perceived—between citizens and law enforcement.     

The Knowledge of Detained Juveniles About the Juvenile Justice System

This article examines the knowledge and perceptions of detained juveniles about the roles of juvenile justice officials and the nature of the juvenile justice system. Data were collected through interviews in a group setting. The small sample size limited the generalizability of the findings but provided specific information important for future research and policymaking on an under‐studied group. The study found that the experiences of the juveniles with the justice system provided only limited understanding of the system's processes and confusion about juvenile justice officials' roles. The juveniles did not have a clear understanding of how each official's role operated within a set of roles that constitutes the system. Further, they did not fully understand the cumulative effect of juvenile processing.     

Love/Power

Love supplants power as it is often understood in contemporary justice practice, obliterating it utterly. What, then, fills the vacuum? How can justice hope to endure without any mechanism for coercion? By what mechanism can justice hope to function? This essay will explore briefly Foucault’s thought about power as it functions in contemporary criminal justice, but will then develop a theoretical foundation inspired by Simone Weil, as well as a practical guide for a power modality that is consonant with the creation and sustainment of a loving justice.     

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。     

国际刑事司法协助与引渡问题探析

刑事司法协助是国家关系的重要内容,是一国司法权的有效域外延伸,具有重要的外交价值和司法价值。开展刑事司法协助问题的研究,特别是建立我国现代引渡制度,对于打击跨国犯罪、引渡跨国犯罪、追究逃窜到国外罪犯的刑事责任、监控追缴赃款赃物等方面具有重要意义。目前,在我国现存的各种法律规范以及与外国签订的司法协助协定之中,缺乏切实可行的措施。为此,制定切实可行的引渡制度仍是任重而道远的法制任务。     

论国际人权法对国际刑法的影响

冷战结束后,国际人权法获得了较为广阔的生长空间,国际刑法也进入复兴和快速发展的阶段。国际人权法对国际刑法各个领域的影响都十分明显,从基本原则到具体规则,从实体法到程序法,从刑罚制度设计到刑罚的执行,并努力在保护被害人与保障被告人权利两者之间保持微妙的平衡。然而,透过国际人权法推动国际刑法发展的帷幔,不难发现其背后＂人权＂和＂主权＂之间的紧张博弈：为保护人权,国际人权法引领着国际刑法试图突破国家领土的藩篱进而穿透国家主权的坚硬＂铠甲＂;国家则奋力祭起＂主权＂大旗并诉诸＂司法独立＂的坚固盾牌,抵御某些外部政治实体利用国际刑事司法机构干涉其内政、侵蚀其＂司法独立＂,以最大限度地维护国家利益。