Retributivism,Consequentialism, and the Intrinsic Goodness of Punishment

Retributivism is commonly taken as an alternative to a consequentialist justification of punishment. It has recently been suggested, however, that retributivism can be recast as a consequentialist theory. This suggestion is shown to be untenable. The temptation to advance it is traced to an intrinsic good claim prominent in retributive thinking. This claim is examined, and is argued to be of little help in coping with the difficulties besetting the retributive theory, as well as clashing with a desert claim equally central to that theory.     

多元一统:宋辽夏金法律文化的融合

李唐之初,以《唐律疏议》为代表的中华法系的建立,凝聚了中华民族的法律精神和治理智慧。中国传统法律文化上的"民本"理念呈现出以和为贵、追求和谐的鲜明"中国"精神价值特色。唐季以降,随着长城体系的打破,中华法系在农耕与游牧生产方式交织影响下,"民本"理念中增加了多民族和谐共存的内容。整体法律价值出现天下一体、文化正朔、民族共融的新补充。宋、辽、夏、金政权对峙期间,各政权围绕客观上异民族多元文化共存这一前提进行法律治理新模式的建构。两宋在"大一统"框架下推进法律"一道德、同风俗"的模式。辽朝在南北异质文化下探索法律互通的模式。西夏在"蕃汉兼备"多元文化下兼容各种法律模式。金朝全面接受两宋法律治理模式。这些尝试的结果奠定了中国国家法律治理的基本版图,完善了多民族共生共存的治理经验,加强了统一政权的认同感。这种努力使传统中国国家法律治理模式获得了道路试错与经验积累,具有多元一统的法律文化特征,融合了中国各民族法律文化,极大丰富了中华法系的内涵。     

The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities

This essay presents a moral justification for the current generally accepted amoral ethical role of the lawyer. The justification is premised primarily upon the values of individual autonomy, equality, and diversity. Based upon these values, the author argues that the amoral role is the correct moral stance for the lawyer as a professional, is a "good" role. The essay then responds to two of the most frequent criticisms of that moral stance: the first based upon economic inequality and the fact that lawyers'services must be purchased; the second based upon the absence of the "adversary system" context for most lawyer work. The author then elaborates a serious problem created by the conjunction of the amoral role and the dominant legal philosophy of American lawyers, "legal realism." If the limit on a lawyer's conduct under the traditional amoral role is the law, then the realist emphasis on the indeterminacy and manipulability of "law" leave the lawyer in a difficult moral position. Finally, a series of possibilities are presented to deal with this problem, the most promising of which is the "moral dialogue" between lawyer and client as an adjunct to the amoral role.     

Food, drugs, and droods: a historical consideration of definitions and categories in American food and drug law

This Article explores the evolution and interaction of the legal and cultural categories "food" and "drug" from the late nineteenth century to the present. The federal statutory definitions of "food" and "drug" have always been ambiguous and plastic, providing the FDA with significant regulatory flexibility. Nevertheless, the agency is not necessarily free to interpret the definitions however it chooses. "Food" and "drug" are not only product classes defined by food and drug law, but also fundamental cultural concepts. This Article demonstrates that the FDA, as well as Congress and the courts, have operated within a constraining cultural matrix that has limited their freedom to impose their preferred understandings of these categories on American society. Nonetheless, history also provides ample evidence that lawmakers possess substantial power to mold the legal categories of "food" and "drug" so as to advance desired policies. One explanation for this regulatory flexibility in the face of deep-seated cultural conceptions is the indeterminate nature of the extralegal notions of "food" and "drug." The terms, as commonly understood, embrace nebulous, overlapping, and constantly evolving realms. Moreover, the relationship between culture and law is not a one-way street with respect to these categories. Although the regulatory apparatus has always had to take into account the extralegal understandings of "food" and "drug," the law in turn has exerted significant influence over their meaning in broader culture.     

Precedent Externality, Network Effect, and the Possible Inefficiency of the Evolution of Laws

Using the traditional scenario of tort conflict as an example, I argue that the marginal precautionary costs of injurers and victims are not constant, as was assumed by most previous researchers. The precedent of a liability rule has some natural externality on the precaution technology, and hence marginal cost, faced by future agents involved in torts. The adoption of legal rules therefore has a network effect, meaning that the present prevalent adoption of one rule increases the probability of its future adoption. Treating the dynamic evolution of legal rules as a random process, we are able to apply an established result in the literature of network economies to conclude the path-dependence, non-predictability, and potential inefficiency concerning the final legal rule to which the dynamics converge.     

Social meanings of terrorism: Reification,violence, and social control

Conclusion Terrorism as a force in social and international relations appears to some as a relapse into barbarism, a peculiar and dismal aberration of civilized life, and a step backward in the conduct of war. Whether terrorism as a way of settling disputes is better or worse than what preceded it is a value question that cannot be adequately addressed here. Most changes or innovations in war tactics have been regarded as unfair, sneaky, or unsporting upon their introduction, but circumstances usually force their acceptance and the sophistication of violence escalates. When set against the tapestry of a thousand years of military history, terrorism can be seen as a tactic frequently employed by both governments and individuals. It is modern industrial society's increased vulnerability to this form of violence which makes it appear so horrendous, and subjects it to moral indignation [27].In a behavioral sense, official and individual terrorism achieve similar results, although governments usually have greater resources on hand. It is above all a reified conception of governments, nation-states, and the legitimacy of official terrorism that permits the social meaning process to function as it does, i.e. individual terrorism is condemned as morally repugnant, while official terror is accepted as severe but necessary. With this bifurcation in mind, the sociologist has a choice — banish the term,terrorism altogether since it amounts to little more than moralized name-calling, or save the concept since it does in fact make an important distinction between types of violence, and apply the term even-handedly to both governments and individuals.I wish to thank Deirdre Daly for her editorial assistance     

Equity,relative deprivation,and the value consensus paradox

This paper addresses the question of why respondents, when asked to specify an income they would be willing to accept as just, settle for an amount that, in most case, does not deviate strongly from what they actually receive. The phenomenon is illustrated by data from West Germany. It is argued that relative deprivation theory must be extended to incorporate processes of social hierarchy perception because inasmuch as this perception is contorted it creates illusory justice evaluations. Empirical evidence of misperceiving social distributions is given by social grading studies based on large German samples. The structural causes of the distributional misperceptions are discussed, one of these causes being the value consensus paradox, i.e., the paradox that, in a stratified society, value consensus will produce different social perceptions.     

Trauma, sport, and malignant cerebral edema

Sudden cerebral swelling and death secondary to craniocerebral trauma has been noted in children and young adults. This is due to an increase in intracerebral blood, either secondary to an increase in cerebral blood volume or a redistribution of intracranial blood from the pial to the intraparenchymal vessels. Sequential craniocerebral trauma has been associated with the syndrome of "malignant cerebral edema"; the possibility of a "compliance compromised brain" has been suggested as the cause. The additional possibility of asymptomatic encephalitis leading to a compliance compromised brain and malignant cerebral edema is discussed.     

Selective detection of trace nitroaromatic, nitramine, and nitrate ester explosive residues using a three-step fluorimetric sensing process: a tandem turn-off, turn-on sensor

Detection of trace quantities of explosive residues plays a key role in military, civilian, and counter-terrorism applications. To advance explosives sensor technology, current methods will need to become cheaper and portable while maintaining sensitivity and selectivity. The detection of common explosives including trinitrotoluene (TNT), cyclotrimethylenetrinitramine, cyclotetramethylene-tetranitramine, pentaerythritol tetranitrate, 2,4,6-trinitrophenyl-N-methylnitramine, and trinitroglycerin may be carried out using a three-step process combining "turn-off" and "turn-on" fluorimetric sensing. This process first detects nitroaromatic explosives by their quenching of green luminescence of polymetalloles (lambda em approximately 400-510 nm). The second step places down a thin film of 2,3-diaminonaphthalene (DAN) while "erasing" the polymetallole luminescence. The final step completes the reaction of the nitramines and/or nitrate esters with DAN resulting in the formation of a blue luminescent traizole complex (lambda(em) = 450 nm) providing a "turn-on" response for nitramine and nitrate ester-based explosives. Detection limits as low as 2 ng are observed. Solid-state detection of production line explosives demonstrates the applicability of this method to real world situations. This method offers a sensitive and selective detection process for a diverse group of the most common high explosives used in military and terrorist applications today.     

Tension, compression, and shear: directions, stresses, and outcomes of health care cost control

"Control" of health care costs is often portrayed as a struggle between external, "natural" forces pushing costs up and individuals, groups, and societies trying to resist the inevitable. This picture is false. Control includes strenuous efforts by some to raise costs, and by others to resist those increases, and/or to transfer costs to someone else. But all such forces originate in the purposes and interests of individuals and groups. Health care cost control is a struggle among conflicting interests over the priorities of a society, and claims of "inevitability" are simply part of the political rhetoric of that struggle. International experience supports certain conclusions. First, there is no basis for the claim that limits on expenditure growth must threaten the health of (some members of) a society. Second, there is a substantial variety of experience with cost control. Failure in the United States is often presented as evidence of the impossibility of control, but most other countries have succeeded. Finally, control requires the direct confrontation of interests, with substantial build-up of stress. Advocates of expansion are more successful if they can transform compressive forces into efforts to shift the burden onto someone else. Pressures from providers in every country for "privatization" and/or payment by users reflect this recognition of economic interest.     

Expert witnesses,nonexpert witnesses,and nonwitness experts

The role and responsibilities of the expert winness is a controversial subject. This article emphasizes the legal rules (of evidence and procedure) governing the expert and the policy grounds on which they rest. As the law's policies for the use of expertise shift from stage as stage as litigation progresses, or differ between categories of legal cases (criminal vs. civil), or with a party's use of an expert (from being a nonwitness consultant to an expert witness at trial), the law expects the role of the expert to be reshaped accordingly. On some important issues, the law sends contradictory messages: What its formal rules announce is at war with its structure and practices. And these, in turn, sometimes are in tension with the demands of the expert's professional ethical codes. On other matters of importance to experts, the law is silent, because the rules were motivated by a need to control the behavior of parties and lawyers, not experts. The result of all this is to present those who would be conscientious expert witnesses with a need to resolve nearly impossible role conflicts and ethical dilemmas.American Psychology-Law Society, delivered at the Annual Meeting of the American Psychological Association. New Orleans, August, 1989. That address was titled Expert Witnesses: Psychology and Beyond     

Psychopathy,Treatment Involvement,and Subsequent Violence Among Civil Psychiatric Patients

Individuals with psychopathy typically are viewed as incurable cases that should be diverted from treatment settings to environments where their behavior can be monitored and controlled. The prevailing clinical conviction that psychopaths are untreatable has crucial implications, given the scarcity of mental health care resources, the number of legal contexts that call for assessment of treatability, and the explosion of research on psychopathy and violence risk over recent years. Based on a sample of 871 civil psychiatric patients (including 195 potentially psychopathic and 72 psychopathic patients), this study explores the relations among psychopathy, receipt of outpatient mental health services in real-world settings, and subsequent violence in the community. The results suggest that psychopathic traits do not moderate the effect of treatment involvement on violence, even after controlling statistically for the treatment assignment process. Psychopathic patients appear as likely as nonpsychopathic patients to benefit from adequate doses of treatment, in terms of violence reduction. We interpret these results in light of prior research with offenders and analyze their implications for future research, policy, and practice.     

Rape,burglary, and opportunity

Following on the recent development of opportunity theory in criminology, we apply an opportunity approach to rape. Although rape is commonly viewed as a street crime, a substantial proportion of rape occurs inside homes following an unlawful entry of the residence. Drawing on this observation, we argue that rape and burglary, because they share a common locus in the home, should exhibit similar opportunity structures. That is, characteristics that place particular types of homes and householders at greater risk of burglary should also place (female) residents at greater risk of rape. An analysis of UCR rates and censusderived opportunity variables for 155 SMSAs in 1980 supports this position. We conclude that home-intrusion rape (rape following an unlawful entry of the home) is a violent crime with the opportunity structure of a property crime.     

Insanity,justification, and culpability toward a unifying schema

Insanity has long been viewed as an excuse rather than a justification: Insane people are acquitted not because they did nothing wrong, but because they are considered morally blameless for their wrongful conduct. A new substantive test based on justificatory rather than exculpatory principles—a quasisubjective justification (QSJ) test—is compared to Finkel's relative culpability test, and to two excuse oriented tests, ALI and IDRA, across seven cases. QSJ and Finkel's test both produced significant verdict differences, whereas ALI and IDRA verdicts were not significantly different. The QSJ effect, however, was observed only in cases judged low in justification, and thus did not play a determinative role across cases; other variables, such as perceived severity of the disorder and culpability for bringing about the disorder, to which only Finkel's test was sensitive, seem to have more explanatory power.     

Technology,property, and law

Between 1975 and 1986 forty-eight states passed laws specifically criminalizing unauthorized access to computer-based information. Thirty of these states passed their computer crime laws between 1982 and 1985. This flurry of legislative activity occurred in a climate of concern for the need to stem what was characterized as a wave of computer crime. The data presented here, however, indicate that these laws did not result in any corresponding wave of prosecutions of computer criminals. This suggests that social forces other than an instrumental need for a mechanism to prosecute computer criminals played a role in the passage of computer crime laws. Specifically, we argue that the passage of computer crime laws resulted from the need to incorporate a new form of value within the establish framework of property rights, and a desire to preserve established relationships between power and knowledge that were threatened by the emergence of computer technology. We conclude by suggesting that the study of law-making is enhanced by examining the structural bases for the motives of legislators and advocates of legal change, in addition to the motives themselves.     

Enemies Everywhere: Terrorism, Moral Panic, and US Civil Society

Since the attacks of September 11th, 2001, terrorism has experienced a prominence in discourse across the U.S. The representations of terrorists and terrorism by the news media and politi have contributed to the edifice of terrorism as a moral panic. This treatise examines the social effects that have or may occur due to the social construction of a moral panic of terrorism. The thematic frame is situated within Cohens stages of a moral panic. We offer an analysis of the medias depiction and coverage of acts of terrorism, and legislative, political and legal responses in the form of social and cultural changes occurring from the creation of a moral panic. In addition, we offer an analysis of the states vested interest in the social construction of this panic, leading to increased levels of fear, targeted at the general publics consciousness. This article concludes that the presentation of terrorism and terrorists by the media and politi have contributed to unnecessary levels of panic and fear, misguided public consciousness, and the development of legislation creating negative social ramifications yet be seen.     

Technological, economic, and political feasibility in OSHA's Air Contaminants Standard

In 1989, after almost two decades of substance-by-substance standard setting, the Occupational Safety and Health Administration (OSHA) promulgated its Air Contaminants Standard, imposing new exposure limits for 376 toxic substances encountered in U.S. industry. In marked contrast to earlier regulations, the Air Contaminants Standard has generated relatively little industry opposition. This paper analyzes the standard in the context of the twenty-year debate over the appropriate role for technological feasibility and economic compliance costs in occupational health policy. The political feasibility of the new standard is traced to OSHA's abandonment of "technology forcing" in favor of reliance on "off-the-shelf" technologies already in use in major firms. While important as an embodiment of OSHA's new "generic" approach to regulation, the Air Contaminants Standard cannot serve as a model for future occupational health policy, due to its reliance on informal, closed-door mechanisms for establishing regulatory priorities and permissible exposure limits.     

Taxation Threat, Motivational Postures, and Responsive Regulation

The central proposition of motivational posturing theory is that regulatees place social distance between themselves and authority, communicating the nature of that distance through a narrative that protects the self from negative appraisal by the authority. One of the key components of posturing is the coping sensibility that individuals adopt to manage the threat of authority. At a baseline level, authorities make demands on citizens and as such threaten individual freedom. At the highest level, authorities threaten through punishment for non-compliance. Data collected from 3,253 randomly selected Australian taxpayers and a special group of 2,292 taxpayers in conflict with the tax authority are used to show that in both groups, three coping sensibilities contribute to posturing ("thinking morally,""feeling oppressed," and "taking control"), and that all three sensibilities are significantly heightened in the group experiencing conflict with the authority. The article argues that the most effective regulatory outcome is achieved when the regulatory process can dampen the "taking control" and "feeling oppressed" sensibilities, and strengthen the "thinking morally" sensibility. Responsive regulation is an approach that encourages tax authorities to read motivational postures, understand the sensibilities that shape them, and tailor a regulatory intervention accordingly.     

Economic Insecurity,Blame, and Punitive Attitudes

This study examines the relationship between punitive attitudes toward criminals, two measures of economic insecurity and a measure of blame for stagnating incomes that targets welfare, affirmative action, and immigration. In effect, we are testing whether punitiveness toward criminals is part of a general constellation of resentment toward what Gans (1995 Gans, H. J. 1995. The war against the poor, New York: Basic Books.  [Google Scholar]) has termed the “undeserving poor” and that Garland (2001 Garland, D. 2001. The culture of control, Chicago: The University of Chicago Press. [Crossref] , [Google Scholar]) has described as the “politics of reaction.” Survey data involving 1,476 adults are assessed using OLS regression. Results indicate that blame of welfare, affirmative action, and immigration is the strongest predictor of punitiveness. Economic insecurity has variable input to punitive attitudes that depends on the measure used and the sex and race of respondents. Some evidence of an “angry White male” phenomenon is also provided by the results.     

Psychology,law, and the black community

Summary The present paper presented key applications of psychology and the law to the black community, embracing both civil and criminal law and legislation. The breadth of its focus preluded a more in-depth treatment of other areas relevant to black people which include issues related to psychiatric emergencies and involuntary hospitalization, child custody, and right-to-treatment litigation in prison and mental health facilities. In focusing attention on these applications and areas for activity, hopefully, I have not presented an unrealistic depiction of a responsive, socially sensitive, legal system capable and willing to exercise its powerful tools in the interest of the black community. To the contrary, there is considerable literature that identifies the historic role of the legal system in the enactments of laws to institutionalize and cement slavery, its failure to aggressively protect constitutional and civil rights of blacks, in imposing penalties differentially to blacks and whites in the criminal justice system, and more recently, conspiracies of law enforcement officials to deprive blacks of basic civil rights (Bell, 1975; Burns, 1973; Higgenbotham, 1973). The legal system, rather than being an effective instrument for justice and positive social changes, has often been a major source of racism. Thus, any meaningful attempts by lawyers or behavioral scientists in the interest of black people cannot ignore the racism that is embedded in the fabric of the legal profession and the behavioral sciences. Particular aspects of the law with significant social-psychological dimensions are: the cultural inertia, the archaicness of the law due to its roots in English common-law, historic and contemporary racism, conservatism associated with the principle of stare decisis, judicial elitism, and the substitution of administrative and judicial discretion for overt racism. Thus, in order for the legal system, or the field of psychology, to be reponsive to the needs of blacks and other oppressed groups, they must eradicate racism and injustice in their own ranks.Traditionally law has functioned as the hand maiden of the propertied class in our society. So it was to be expected that lawyers in the legislative halls, lawyers on the bench and lawyers in the executive branch of government would combine their talents to perpetuate by law this peculiarly American doctrine of racism predicated upon a claimed color inferiority.