Beatings,Beacons, and Big Men: Police Disempowerment and Delegitimation in India

It is a truism that police in India generally lack legitimate authority and public trust. This lack is widely understood by scholars, policy analysts, and police practitioners as being rooted in the institution's colonial development as a means of oppression, and its alleged corruption and criminalization in the postcolonial period. The social facts of situational hyper‐empowerment and the widespread decadence of police do much to explain their poor image and performance, but these explanations do not account for the fact that police in India are also structurally disempowered by cultural‐political and legal‐institutional claims to multiple and conflicting forms of authority that challenge and often overwhelm the authority of police. This structural disempowerment and its performances in everyday interactions between the police and the public constitute an ongoing social process of delegitimation of police authority in contemporary India. Following ethnographic analysis of this process of delegitimation, I explore the implications of focusing on police disempowerment for theorizations of the sources and capabilities of state legal authority more generally.     

与碳排放交易有关的犯罪行为及其防范措施

碳市场属于新兴市场,呈现碎片化特征。碳排放交易标的为法律虚拟物,不需要实物交割,交易相对复杂。碳排放交易和其他金融交易一样,由于涉及资金巨大、法律不完善、监管不严密和透明度欠缺等原因,极易滋生犯罪。与碳排放交易有关的犯罪行为主要为诈骗、逃税、洗钱和网络盗窃等。应该加强各碳排放交易市场间的合作与沟通,共同监管和惩治碳排放交易所涉犯罪行为。     

The Movement to Criminalize Sex Work in the United States

Until recently, prostitution was not a prominent public issue in the United States. Law and public policy were relatively settled. The past decade, however, has witnessed a growing debate over the sex trade and the growth of an organized campaign committed to expanding criminalization. A powerful moral crusade has been successful in reshaping American government policy toward sex work – enhancing penalties for existing offences and creating new crimes. Crusade organizations have advocated a strict abolitionist orientation toward all forms of commercialized sex, which are increasingly conflated with sex trafficking. This paper examines the impact of this movement on legal norms and government policies. I argue that the moral crusade, and its government allies, are responding to the growth of the sex industry in recent years and to fears of its normalization in American society.     

Beyond the Gaze and Well Beyond Wolfenden: The Practices and Rationalities of Regulating and Policing Sex Work in the Digital Age

Drawing on the largest study of the United Kingdom online market in sexual labour to date, this article examines the legal and regulatory consequences as aspects of sex work increasingly take place within an online environment. Our research shows that while governmental policy has not kept abreast of these changes, the application of current laws (which have, since the 1950s, focused on public nuisance and, more recently, trafficking and modern slavery) are pernicious to sex workers and unsuited to recognizing and responding to the abuses and exploitation in online markets in sexual labour. These injustices are likely to be exacerbated if policies and policing do not better align with the realities of these markets in the twenty‐first century. This demands a more nuanced regulatory approach which recognizes that people may engage in sex work of their own volition, but which also addresses conditions of labour and criminal exploitation.     

Criminal law and HIV/AIDS: strategic considerations

Richard Elliott's paper on criminal law and HIV/AIDS, an edited and updated version of his presentation at "Putting Third First," sets out five guiding principles for criminal law policy and HIV/AIDS; briefly outlines the rationales for criminalization; discusses three strategic legal questions regarding the criminalization of HIV transmission/exposure; and offers a number of recommendations for consideration of those needing to articulate a well-considered perspective on the ethical, legal, human rights, and public health dimensions of the criminalization of HIV transmission/exposure.     

Drug use and violence: Rethinking the connections

This paper examines the available empirical and theoretical literature on the connections between drug use and violent crime, using the conceptual framework developed by Goldstein (1985). The authors argue that the available evidence on the drugs/violence nexus does not support moral claims about the ‘harmfulness’ of illegal drugs that underpin the criminalization of certain mind-active drugs. Instead, much of the connection between legal and illegal drug use and violence appears to be an effect of a history of criminalization of certain drugs. Law is therefore implicated in producing the connection between drug use and violence, rather than acting simply as a neutral mechanism for controlling criminal violence.     

Abortion and legal policy

This paper reviews four legal policies in abortion from a critical theory of law perspective. Since the Comstock era, abortion policy has undergone radical shifts from criminalization in the last quarter of the nineteenth century to decriminalization in the late 1960s, followed by legalization and medical control over the last decade. Yet, until recently, little scholarly attention has been given to the social and political implications of these various policy shifts (almost all studies focus on the current legal phase only) often in isolation from other social and political realities. In this paper we draw on historical, demographic, participant-observation, interview, and documentary and legal materials to analyze the transformations of legal control structures in abortion. This shows both the creation of abortion law, which is imbedded in structures of sexual domination, and the contradictions in abortion law, which express antagonisms in civil society as well as promote alliances within ruling groups. The abortion case further clarifies the failure of legality to transcend existing gender inequalities, thereby contributing to further erosion of welfare rights for poor women and their children.     

The Differential Management of Financial Illegalisms: Assigning Responsibilities in the Libor Scandal

How, in a context of growing critiques of financialization, can law contribute to protecting the legitimacy of finance? This paper argues that the assignment of responsibilities between individuals and organizations plays a decisive role, using the recent Libor scandal as an empirical illustration. To do so, the paper offers a Foucauldian framework, the differential management of financial illegalisms, dedicated to the study of illegalities in financial capitalism. The comparison of the legal treatment of two manipulations of Libor, this key benchmark in financial markets, reveals how mid‐level traders have been the object of criminal prosecution, while law undervalued the role of top managers and organizations. To capture how differential management is performed in practice, I analyze precisely how the conflict‐resolution devices (criminal trial vs. settlement) and the social categorizations prevailing in the two manipulations of Libor favor different forms of responsibility, individual or organizational. I conclude by exploring the implications of law's relationship to financial legitimacy.     

Conditions for Guilt-Free Consumption in a Transnational Criminal Market

It has been widely opined in discussions around a number of transnational criminal markets that where a global economic supply and demand relationship exists, demand reduction by way of consumer education and ‘awareness-raising’ may be an effective intervention in reducing illicit trade. It seems an obvious and sensible suggestion on the face of it, but just how amenable are consumers to being educated away from purchasing illicitly obtained and trafficked goods, and what are the barriers that stand in the way of that process of demand reduction through awareness-raising? This paper approaches these questions by asking what are the conditions for guilt-free consumption in the international trade in illicit cultural objects. The paper identifies seven such conditions, and concludes that in this global market we are witnessing the playing out of a common social story in which a powerful group of market capitalists and end-consumers employs a range of sociologically developed linguistic and performative strategies to obfuscate or legitimise their exploitation of a group of less powerful victims. If that is the context for the so-called debate about illicit antiquities, crime-reduction strategies involving consumer education seem considerably more difficult to achieve than has been widely recognised in policy discussions on transnational crime.     

Does Empirical Legal Studies Shed more Heat than Light? The Case of Civil Damage Awards

Empirical investigation of legal systems is emerging as a leading trend in both the social sciences and the legal academy in the early twenty‐first century. Law reviews are now filled with studies reporting empirical data. Because empirical investigation of law commonly seeks to inform contentious social and political debates, however, its research often fuels more debate than it resolves. Partisans on both sides of contentious issues now cite the same body of research to support their reform efforts. However, social science research on law is not a useless undertaking, as it can sharpen debate. But the hope that the new empirical legal studies movement will become a neutral source of information for policy makers is unlikely to be realized.     

On the Resilience of Illegal Drug Markets

This paper argues that the concept of resilience is a fruitful way of understanding the impact of repressive policies on illegal drug markets. For the purpose of this article, resilience is defined as the ability of market participants to preserve the existing levels of exchanges between buyers and sellers, despite external pressure aimed at disrupting the trade. The first part of the paper highlights how some of the core features of illegal drug markets, a decentralized structure and high prices, contribute to increasing their resilience to attacks. The second part develops a framework that can be used to compare markets on the basis of their resilient properties. Some of the empirical and policy implications of the framework are discussed in the conclusion.     

Unsettled Times for American Families

In Caring for Our Own: Why There Is No Political Demand for New American Social Welfare Rights (2014), Sandra Levitsky reveals how an enduring ideology of family responsibility and a decoupling of social support groups from organized advocacy constrains mass legal mobilization to address long‐term elderly care in the United States. This essay argues that American families have entered an unsettled period linked to social inequality, young adult living arrangements, immigration, and institutional shifts related to LGBTQ families, workplace‐family conflict, and the criminalization of elder abuse. These changes to the family may create the conditions for questioning the ideology of family responsibility and new possibilities for collective action with potentially contradictory meanings and lines of action, including politicization and legal mobilization.     

Similar in Their Differences: Transnational Legal Processes Addressing Money Laundering in Brazil and Argentina

The purpose of this article is to provide a comparative analysis of the transnational legal processes that Brazil and Argentina underwent to address money laundering. The article discusses the interaction between the Financial Action Task Force (FATF) norms and a number of changes both countries have experienced in the last decade. The comparison focuses on the three central pillars of the anti‐money laundering order (AMLO): criminalization, administrative obligations imposed on the financial sectors, and the creation of a financial intelligence unit. Building from the analytical framework developed by Shaffer (2011), the evidence gathered in this study illustrates different dimensions of state change and highlights the main challenges to assess the effectiveness (output legitimacy) of transnational legal orders empirically.     

经济自由与刑法理性:经济刑法的范围界定

刑法对任何行为的惩罚都要有正当化根据,要坚持犯罪化的基本原则。当今世界不少国家刑法都呈现泛化倾向,我国经济刑法也明显存在调整范围过度的现象。传统刑法理论认为经济犯罪的客体是国家经济秩序,这种理解难以符合市场经济本质和前行方向,容易引起经济刑法处罚范围的不当扩大。经济犯罪是市场主体滥用经济自由而导致对其他平等主体或社会、国家公共利益的伤害(危险),对其法益要从实质上解释,形式上只是违反特定经济制度或秩序,不产生具体法益侵害的行为,应由经济行政法调整,不宜纳入刑法范围。当前我国经济犯罪的司法认定要重视刑法解释方法的运用,以限缩经济刑法的处罚范围。     

The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?

The article contests the claim that EU private law is narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, although it tends to obscure the underlying transformative pressures on private law and regulation and the role EU law plays in coping with such pressures. To offer a number of counter‐narratives, the article draws on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. These suggest that EU private law is constructed through a process of error‐corrections, which allows for mutual adjustment of instruments and hybridisation of EU and local policy goals. The process results in more finely grained assemblages of autonomy and regulation to respond to concrete problems or newly salient policy goals, so that markets are understood as social institutions that are always works‐in‐progress rather than convergence points. Thus, EU private law provides a platform for transnational market‐building through innovating institutions that promote various normative and policy commitments despite the interdependencies that could undermine them.     

The Developing Habitus of the Anti‐Social Behaviour Practitioner: From Expansion in Years of Plenty to Surviving the Age of Austerity

Specialist anti‐social behaviour units are common within social housing providers, with many established in response to the policies of the New Labour governments of 1997–2010. These units now find themselves operating in a different political and financial environment. Following the English riots of 2011, the Coalition government, whilst imposing budgetary cuts across the public sector, called on social housing providers to intensify their role in tackling disorder. This article explores the habitus or working cultures within anti‐social behaviour units post‐New Labour. It does so through empirical research conducted in the aftermath of the English riots. The research finds that practitioners view their work as a core function of social housing provision. They have developed an understanding of human behaviour, which crosses the criminal and social policy fields with a wide skillset to match. A number of factors including national policy, community expectations, and multi‐partnership engagement influence their dynamic working culture.     

Inventing Drugs: A Genealogy of a Regulatory Concept

The trade in, and consumption of, illicit drugs is perhaps the archetypal ‘wicked problem’ of our time – complex, globalized, and seemingly intractable – and presents us with one of the very hardest legal and policy challenges of the twenty‐first century. The central concept of a ‘drug’ remains under‐theorized and largely neglected by critical socio‐legal and criminological scholars. Drawing on a range of primary archival material and secondary sources, this article sets out a genealogy of the concept, assembled a little over a century ago out of diverse lines of development. It is argued that the drug label is an invented legal‐regulatory construct closely bound up with the global drug prohibition system. Many contemporary features of the ‘war on drugs’ bear traces of this genealogy, notably how drug law enforcement often contributes to racial and social injustice. To move beyond prohibition, radical law and policy reform may require us to abandon the drug concept entirely.     

法定犯中行政前置性要件的法理基础与制度构造

行政前置性要件作为刑法分则个罪中的限制性要件,强调行政处理优先性,包含着以刑罚处罚确保行政执法效果的制度期待,是刑法谦抑性的新表达。在法定犯日趋增多的时代背景下,刑法修正中的犯罪化不可避免,单一强调犯罪化或非犯罪化均存在较大副作用,在个罪中设置行政前置性要件,重视法益恢复在阻却犯罪成立中的积极价值,有利于追寻犯罪化与非犯罪化的最佳平衡点。行政前置性要件的法理基础在于部分犯罪存在法益侵害待定状态。立法者在增设法定犯时,若认为该犯罪存在法益侵害待定状态,并且不直接涉及人身法益,当优先考虑设置行政前置性要件。     

The Social Movement Turn in Law

The rise of social movements in US legal scholarship is a current response to an age‐old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept—movement liberalism—that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half‐century. Yet rather than resolving the law‐politics problem, movement liberalism reproduces long‐standing debates, carrying forward critical visions of law that it seeks to transcend.