Illusions and Realities of the "New Era"

"Last week the world suffered a shock that will inevitably make us divide the time into two parts—before the terrorist acts in the United States and after them. Because a new world and a new world order are being born in the ruins of the World Trade Center" (S. Strokan', "The Dawn of a New Era" [Zarevo novoi ery], Kommersant-Vlast', 2001, no. 37 [18 September], p. 35). Not only the Russian political weeklies thought this. The tragic events that the United States suffered on 11 September not only sent many countries into shock but also sparked the idea that humanity suddenly found itself in an incomprehensible world, a new space-time—that life would be different from then on, that we would think differently and structure international relations differently. Even some of the supporters of Francis Fukuyama, who proclaimed the "end of history" more than ten years ago, hurriedly declared that the "oracle" was wrong, since on 11 September events of historic scale and significance had taken place in the United States. One critic of the American "prophet" noted, not without sarcasm, that "Black Tuesday" signified "the end of the end of history." That did not, however, shake the convictions of Fukuyama himself. In an article eloquently titled "History Is Still Going Our Way," published in The Wall Street Journal Europe on 8 October, he continued to assert that "we remain in the final stage of history" (F. Fukuyama, "History Is Still Going Our Way," The Wall Street Journal Europe, 8 October 2001).     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

Uncivic Society as a Sociopolitical Phenomenon in Ukraine: Reflections of the Social Character of the "Average" Ukrainian in the Electoral Process

Among the many remarkable peculiarities of the electoral process in Ukraine during the eighteen-month electoral cycle (from the parliamentary elections in March 1998 to the presidential elections in October-November 1999), the features of most interest to political scientists are those that, if properly explained, will enable us, first, to outline the basic parameters of citizens' behavior under the political regime that has evolved during the last ten years and, second, to determine the value orientations and the potential of the principal social and political actors. Above all, I have in mind the sociopolitical and sociocultural components of the elections or, to use a term of Erich Fromm's, the social character [1] of what is called the mean statistical (average) Ukrainian.     

Restraint,Reaction, and Penal Fantasies: Notes on the Death Penalty in Israel, 1967–2016

What role does the death penalty play in contexts of protracted political violence? What does it symbolize for its opponents and proponents in such contexts? Can it survive as a potent topic of political life even without actual executions? Since 1967, the death penalty has been a lawful sanction in Israel's military courts, which have jurisdiction over Palestinians in the Occupied Territories. Though it has never been carried out, it has been intensely debated throughout this period and the topic has retained major political, cultural, and judicial significance. I argue that both sides in these debates use the topic mostly symbolically, rather than as an issue of public policy. For opponents, refraining from using the death penalty has become a symbol of restraint , used in self‐legitimation. For proponents, death penalty advocacy serves as what I term a penal fantasy , an outlet for frustration, symbolizing defiance against the image of restraint.     

Vladimir Shapoval: "The CEC Is Destined to Be the Scapegoat"

"The law is harsh, but it is the law"—the well-known ancient Roman saying is entirely suitable as a brief synopsis of the Lb.ua interview with the chairman of the Central Election Commission (CEC), Vladimir Shapoval.

"Any electoral legislation, I emphasize, any, will always be 95 percent the product of political expediency. Always. This way gives them an advantage—so be it." This is how he calmly parried my emotional "How can the advantage of the strong be codified in the law (!), and the weak essentially have no chance? What can you do, how can it be?" "All this ‘whining and crying,’ say, the law is this and that in substance, I do not accept it. The laws were adopted—so we will follow them. You cannot get away from it," he added.

It might seem to someone who does not know Vladimir Nikolaevich that the chief vote-counting official is being clever, "covering up" the "distortions" of the authorities "at the local level." He is in fact speaking frankly. The chairman of the Central Election Commission formed on the eve of the 2007 preterm parliamentary elections by a "coalition"—a retired Constitutional Court of Ukraine (CCU) justice, and a doctor of legal sciences who is an active member of the High Council of Justice (HCJ), he can permit himself that. Shapoval contrives to call things by their names: "How the law is written is another matter. And its parts are written abominably," he states bluntly.

In view of this, my discussion with Shapoval—formally tied to the start of a local elections campaign—went far beyond the bounds of a discussion of the legislation on this topic, and even the specifics of the campaign. The more so as I had already discussed this in detail with CEC Deputy Chairman Andrei Magera. Vladimir Nikolaevich, without concealing his indignation, related just what the HCJ is really afraid of (and it turned out it was not at all, or more precisely not only, what they are portraying it to be). Relying on nine years of experience as a CCU justice, he elucidated the risks of the invalidation of the 2004 constitutional reform by the current Constitutional Court—"only those who have face can lose it." Sketching out the situation in the body politic, he summed up, "If the Party of Regions (PoR) does not win the local elections, many questions will arise."     

Defending <Emphasis Type="Italic">Why</Emphasis><Emphasis Type="Italic">Law</Emphasis><Emphasis Type="Italic">Matters:</Emphasis> Responses to Commentaries

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge (only) on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.     

Dictatorship,democracy and corruption in Chile

The study of corruption in Chile suffers from the lack of a pre-existing body of academic research on which to draw for historical or contemporary analysis. This situation may be partially explained by several factors. Firstly, academic research tends to be reactive rather than proactive, in the sense that issues rarely become researched until they are either topical, or perceived to be problematic and significant. The configuration of historical circumstances in Chile has meant that corruption has been perceived to be considerably less widespread and less overt than in other parts of Latin America. For reasons which will be examined below, Chile is quite clearly not in the same league as Brazil, México or Venezuela in terms of corruption in the political system, and therefore the body of existing research has tended to focus on those cases where corruption is evident and more easily observable. Secondly, the lack of research material may also be partially explained by the nature of corruption in Chile. It undoubtably exists, but it has been characteristically low-key, assuming its own particular characteristics which have become known as corrupción a la chilena. Low-intensity corruption is undoubtedly more difficult to categorise, define and measure in comparison with flagrant abuses by individuals, sectors of society or ruling parties, and this may also be a contributory factor. A third factor may be that such low-intensity activities may become such an integral part of the political culture that they become accepted ways of the business of politics and therefore fail to even raise objections from public opinion. Only when the political environment changes do these issues become perceived as unacceptable. However, what is beyond dispute is that corruption has and does exist in Chile but it is influenced by the political culture of a particular period and by the political and social context.     

The birth of population statistics in Sweden

In 1749, Sweden established a system for population statistics (Tabellverket) that annually presented data for important demographic events in the 2500 parishes of the country. Taxation records and church book registration were important antecedents, as were the temporal events of wars, famines, and raging epidemics. During a period of recovery, Sweden went through political changes. Influenced by international political arithmetic and mercantilism, the establishment of Tabellverket was part of a plan to increase and rationalize the population. The existence of a medical organization and a central administrative system helped, but even more important were the networks that included most of the influential people. Thus, clergy who were responsible for the compilation of data played a key role. By using the existing church organization, the project turned out to be realizable.     

Law, Religion, and "Public Health" in the Republic of Brazil

The essay evaluates the general problem that, while most modern republican constitutions follow the U.S. and French models in declaring religious freedom, absolute religious freedom is impossible and undesirable. How are religious freedoms constrained, and how much should they be? The essay evaluates the strategies by which limitations on freedoms of religion are constructed and imposed, especially the powerful isomorphism of law and science described by Boaventura de Sousa Santos. Taking the example of Afro‐Brazilian religions in relation to the Brazilian state since 1890, post‐emancipation, the essay argues that pseudo‐scientific discourses of “public health” constrained the religious practice of former slaves, thus allowing the trompel'oeil of religious freedom to continue in the new republic, even as freedoms were in fact constrained by the state.     

Coordination Cannot Establish Political Authority

One of the most common arguments in favour of the state's authority is that without the coordinating hand of political institutions, we could not achieve important moral benefits. I argue that if we understand authority correctly, then coordination cannot even in principle establish that coordinators have political authority.     

The Short-Lived Influence of the Napoleonic Civil Code in 19th Century Greece

During the Greek War of Independence (1821–1827) from the Ottomans—which had a nationalistic and liberal character—and for the first decades after the liberation, a number of liberal French-educated politicians and scholars attempted unsuccessfully to introduce the Napoleonic Civil Code (or some clone of it) as the Greek Civil Code. Despite the fertile political and intellectual ground for such an introduction, they failed to achieve their goal due to the temporary introduction of Justinian's Roman law as the Greek civil law. This led the Greek academic community to Pandektenrecht and the predominance of the 19th century German legal theory (boosted by its organized propagation on the part of a number of German-educated legal scholars).     

Attempts at drug control in Colombia,Peru and Bolivia

The paper analyzes as part of a broader study the drug-control policy of the cocacocaine producing countries of Colombia, Perú and Bolivia, beginning with a short introduction of the political framework. The legal and political emphasis of this policy lies in the area of control and repression, which therefore is analysed in more detail. One can recognize a (substantial) tendency towards overcriminalisation linked to easier (procedural) possibilities of criminal prosecution and punishment (II). However, this questionable policy, when examined from a civil rights standpoint, proves to be of limited efficacy: given the continuing flow of cocaine to the US and the expanding trade to Europe, the policy can hardly pass a qualitative test considering the quantitative evidence (III). There are basically two alternatives from the viewpoint of the producing countries: the international commercialisation of coca and alternative development; from the viewpoint of the consumer countries the controlled legalisation (IV).This article is based on criminological research about the drug policies of Colombia, Peru and Bolivia, which was accepted at the end of 1992 as a doctoral thesis by the Law Faculty of the University of Munich. It attempts to summarize the substantial results of this research but is compelled, due to its limited scope, to frequently refer to previous publications (Ambos, 1993, 1994).This article was published in an earlier German version in Monatsschrift für Kriminologie und Strafrechtsreform, vol. 76, No. 4/1993, pp. 206–226, in a Spanish version in: Cuadernos de Política Criminal (Madrid) No. 53 (1994) pp. 629–667 and Revista dela Facultad de Ciencias Jurídicas y Politicas, No. 98 (1996), Universidad Central de Venezuela, Caracas, pp. 343–390. — I am indebted to Prof. Daniel Nesereko, University of Botswana for refining the English version and critial comments.     

The Event and the Subject: The (IM)Possible Rehabilitation of Carl Schmitt

The subject is the bearer of the sovereign decision, according to C. Schmitt. This decision grounds on certain situational pragmatics, yet mainly is born out of a ‘null’; as the decision forms the political normalcy that follows after, it displays its nature as an ‘event’. This subject is simultaneously a legal and a political one; it is the founder of the Nomos. This founding subject has been eclipsed in alignment with its post-modernly acclaimed ‘death’. The subject is deemed to have been inherently divided, as long as its identity steadily postpones itself, is incessantly ‘differing’, according to the deconstructionist approach; or it is considered as fundamentally ‘passive’, meaning not so much ‘weak’, but rather dethroning the Western preoccupation with the active autonomous individual; or, it is maintained but intrinsically reversed, now held either as part of a fundamental ontological order and indirectly of the nature (Agamben), or, opposite to Kantian assumptions, as primarily captured in a radical heteronomy, which constitutes it as a proper ethical subject (Levinas). Crucial is how to develop a concept taking into account the eventfulness of the constitution of the subject, without effacing the political character of such constitution by reducing it to non-political discourses, i.e., to metaphysics, morals or economics; how to conceive of Derrida’s ‘democracy to-come’ as political event, namely both as secular act and in the same time as referring to extramundane fundaments (to a ‘political theology’?); how to go beyond the linearity of the liberalist ideology by equating the political event with a messianic miracle ‘without messianism’; how to ‘salute’ democracy?     

Crimes of the powerful and beyond: An essay review

Conclusion I have argued that the problems withCrimes of the Powerful are instances of the inherent limitation of a criminology of the powerful and thus are not specific to a particular text, but refer centrally to a particular enterprise. These problems result from the contradictions entailed in the conjunction of criminology and political economy and the formal use of concepts derived from the latter as an explanation of, or gloss on, problems generated by the former. The formal introduction of the concepts of political economy does not, of itself, entail a break with the criminological agenda and, as a result, the analysis produced is inadequate to its object — the powerful. It is the position of this article that if one is to theorize upon either corporate crime or anti-trust law then political economy must assume priority — or else one simply establishes, as does Pearce, the criminality of big business. It is not the case that crime and law are irrelevant areas for political economy and, more especially Marxism, but rather that a proper understanding of the theoretical requirements necessary for an adequate analysis of corporate crime and anti-trust law must, of necessity, be founded in political economy, not criminology. Hitherto these requirements have not been met by criminology. This can be witnessed by the way in which criminology has addressed political economy, ie. in a purely arbitrary fashion in which concepts are simply adopted as if they were given — concepts which are effectively riddled with contradictions. Until these theoretical requirements are met, or built upon, then criminology is doomed to receive into itself a simple multiplication of texts likeCrimes of the Powerful together with all the consequent inadequacies associated with such texts. In such a context the powerful remains an ever elusive object     

Observing the Breach: Dignity and the Limits of Political Theology

This paper draws together a number of debates concerning ‘dignity’. It points to reasons for the endurance of the concept of dignity, and thereby indicates some limits to analysis via political theology. Dignity is incongruous in law and ethics: it is naturalised theology illicitly augmenting liberal and postmodern theory. At the same time, phenomenologies of dignity suggest that it is something ‘observed in the breach’ when we encounter the diminution of the individual. Political theology would encourage us to treat this appearance of diminution as a point of aporia in ethics and closure in law, ostensibly articulating the loss of ‘humanity’ but in fact revealing nothing more than the reduction of all norms to sovereign decision. However, deconstructive counter-arguments to political theology are possible. First, the persistence of dignity hinges upon perception of loss rather than on any distinctive norms. Second, language games invoking dignity should be seen as performing solidarity. Third, there is a productive instability in the languages of dignity and human dignity. Together, these qualities mean that dignity, despite its theological genealogy, can justifiably play some role in both liberal and postmodern ethics.

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.     

“Fair and Balanced?” Justice Issues on Political Talk Shows

Like their news program predecessors, many political talk shows focus a considerable amount of their coverage on justice issues. Although numerous past studies have examined justice issue presentation in news programs, infotainment, and crime drama, to date only one forthcoming study has examined crime and justice coverage on political talk shows. Political talk shows often present issues in a debate format, as well as emphasize the balanced nature of the content in advertising, with one program even using the slogan “fair and balanced.” Building upon the format of previous media studies, we analyzed a composite month of videotaped footage of three popular political talk shows appearing on cable networks: CNN’s Lou Dobbs Tonight, MSNBC’s Hardball with Chris Mathews, and The O’Reilly Factor from the Fox News Channel. Using content analysis techniques, this study examines balance in the form and content of these programs in terms of presentation of justice issues, political party identification of hosts and guests and realistic presentations of race and gender in the context of crime and justice. Results indicate that these programs tend to adopt an advocacy tone rather than an objectivist one. Furthermore, we demonstrate that racial and gender portrayals of crime and justice on these shows are significantly distorted from reality, with a priority afforded to white female victims of violent crime and minority male offenders.     

Pathways to Power: The Role of Preparliamentary Careers and Political Human Capital in the Obtainment of Cabinet Positions

Understanding the rise to power is central to the study of politics. Yet, we still know little about the career paths of influential politicians like ministers. The literature assumes that dominant preparliamentary occupations (e.g., lawyer, local offices) predict promotion. We move beyond this potential ecological fallacy and suggest a perspective that emphasizes the role of gatekeepers and political human capital like national political experience and education. We leverage complete career data of all Dutch MPs (N = 1,263; 1945–2012) and study their (N = 4,966) opportunities to obtain a cabinet position. A sequence analysis with fuzzy clustering reveals eight career paths in both the professional and political domain. A logistic regression analysis that uses these career paths as predictors shows that prominent occupations and communicative experience do not constitute the pathway to ministerial power; a university education and preparliamentary national political experience do. Findings support the value of political human-capital theory to understand political promotion.     

The Specter of "Antiglobalism"

Another specter is wandering the world—"antiglobalism." The sacred persecution of the specter has united liberals and fascists, adherents of worldwide globalization and diehard nationalists, anticommunists and orthodox Stalinists. When "antiglobalists" are mentioned, even reputable political scientists have no aversion to slander and misinformation. The ordinary person anticipates new "tricks" from the "antiglobalists" with fear, but also with curiosity.     

Fighting Windmills: The Coalition of Industrialists and Environmentalists in the Climate Change Issue

This paper extends the political economy idea developed by Ackerman and Hassler [Clean Coal/Dirty Air, or How the Clean Air Act became a Multibillion-Dollar Bail-out for High Sulfur Coal Producers and What Should Be Done About It. New Haven: Yale University Press], which suggested that a coalition of environmentalists and industrialists successfully lobbied the US Congress. More strict technology-based standards for new emitting sources than for existing sources was the resulting policy outcome serving the common interest of the coalition because it offered both a barrier to entry for new firms and improved environmental quality. We focus on the case of international climate negotiations and the promotion of wind-based energy. Along the lines of the Ackerman and Hassler approach, we suggest that one reason for EU eagerness to push forward ambitious reduction target levels (and thereby promote new green industries) could be a similar coalition between industrialists and environmentalists. Such a strategy can be seen in the context of the Bootleggers and Baptist theory developed by Yandle [Bootleggers and Baptists: the Education of a Regulatory Economist, Regulation, 7, 12–16], where the Baptists (in our case the environmentalists) demand changes in behaviour on moral grounds. In contrast, the Bootleggers (the producers of renewable energy), who profit from the very regulation, keep a low profile. The actual heavy subsidisation of renewable energy sources, such as wind energy, can be viewed as a successful policy outcome for the coalition of industrialists and environmentalists offering both market protection and improved environmental quality. Solving the current dead-lock in international climate negotiations may well imply fighting the strong coalition of industrialists and environmentalists. Such a political battle may turn out to be just as tough as fighting windmills and needs to be addressed in future and more rigorous empirical research. At the end of the day, transparent incentives of relevant stakeholders in the climate change issue are necessary preconditions for progress in the climate change negotiations.JEL Classification: Q28,H2, H4