Street politics in Damascus: Kinship and other social categories as bases of political action, 1830–1841

The study examines popular politics in Damascus during the 1830s with a focus on kinship and other social categories that served as bases for political action. It is based on a close reading of one text, an anonymous Arabic chronicle known as ‘Historical Memoirs’ (Mudhakkirāt tārīkhiyya), which is analysed as a repertoire of contemporary social and political concepts. This analysis reveals an ideology of ‘localist’ resistance against the centralising state and its ‘loyalist’ allies in Damascus. Kinship played an important role in this struggle on the social plane (e.g. by using family networks for political ends) as well as on the cultural plane (e.g. through the use of kinship metaphors or through criticism of kinship ties in politics). It is concluded that the function of kinship in Damascene politics can only be understood in the context of other social categories such as factionalism, religious affiliation, class and ethnicity.     

Justifying violence: legitimacy,ideology and public support for police use of force

Under what conditions do people support police use of force? In this paper we assess some of the empirical links between police legitimacy, political ideology (right-wing authoritarianism and social dominance orientation), and support for ‘reasonable’ use of force (e.g. an officer striking a citizen in self-defence) and ‘excessive’ use of force (e.g. an officer using violence to arrest an unarmed person who is not offering violent resistance). Analysing data from an online survey with US participants (n?=?186) we find that legitimacy is a positive predictor of reasonable but not excessive police use of force, and that political ideology predicts support for excessive but not reasonable use of force. We conclude with the idea that legitimacy places normative constraints around police power. On the one hand, legitimacy is associated with increased support for the use of force, but only when violence is bounded within certain acceptable limits. On the other hand, excessive use of force seems to require an extra-legal justification that is – at least in our analysis – partly ideological. Our findings open up a new direction of research in what is currently a rather sparse psychological literature on the ability of legitimacy to ‘tame’ coercive power.     

The Law of Police Entrapment: Critical Evaluation and Policy Analysis

This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the ‘shift of scene’ assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identifiable cases the defendant would have committed a similar offence at a different time and location absent police entrapment. In these cases, entrapment is morally and economically insignificant and hence legitimate. Using probabilistic analysis, the article advances the argument that the ‘shift of scene’ assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendant’s punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a different basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the offence’s harm expectancy, it is justified to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to ‘correct’ exaggerated or undue increases in the defendant’s punishment expectancy.     

Free Vote Patterns in the New South Wales State Parliament

This research note examines patterns of MPs’ voting behaviour during ‘conscience’ or ‘free’ votes on three ‘morality politics’ issues in the lower house of the New South Wales state parliament in Australia: adoption rights for gay couples; scientists’ use of therapeutic cloning; and the status of the Sydney Medically Supervised Injection Centre. First, the research note reviews the literature on conscience voting and hypothesises that party will be the main predictor of voting patterns, but also establishes that previous studies have almost exclusively focused on national legislatures. Next the research note discusses methodological issues. Third, it presents the analysis of free vote patterns in the New South Wales parliament on the three ‘morality politics’ issues, along four key variables: party; sex; social ideology; and religion. The analysis of voting in the New South Wales parliament challenges existing explanations of free voting, where party is the key predictor of voting patterns. Intra-party unity figures show that party membership is a weaker predictor of voting behaviour in the two main political parties in New South Wales than in either the Australian parliament or in overseas parliaments. It is argued that at the subnational level other factors are more important in explanations of free vote patterns.     

The role of prior punishment in preventive detention decisions

ABSTRACT

Preventive detention legislation allows for ongoing detention or supervision following completion of an offender’s sentence. Consideration of public protection should drive the administration of preventive detention, however research has indicated retributive concerns also drive decision making. Two studies were conducted to examine the motives driving preventive detention decisions, and how contextual variables affected the balance between retributive and public protection motives. In Study 1, participants were presented with information about an offender’s remorse, prior punishment, and risk of re-offence. In Study 2, participants were presented with information about an offender’s prior punishment and offence type, and the relative strength of various potential mediators was tested, to determine factors driving effects of prior punishment information. Overall, results demonstrated participants were driven by both retributive and public protection motives, as well as personal characteristics (e.g. political orientation, prejudice against offenders) when making preventive detention decisions. Findings are discussed in terms of their implications for preventive detention legislation.     

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?     

刑罚轻缓化的社会因素分析

当代世界刑罚的发展趋势是刑罚的轻缓化,对刑罚的轻缓化起决定作用的是社会的经济、政治、文化等因素,发达的市场经济、市民社会与政治国家相分立的二元社会结构和先进的社会文化是影响刑罚轻缓化的重要社会因素。     

The Economics of Cruel and Unusual Punishment

It has sometimes been argued that one way to reduce the costs of law enforcement would be to reduce the probability of detection and conviction (hence saving those costs), while at the same time increasing the size of the punishment. Following this strategy would keep the expected costs (to a risk neutral criminal) of committing a crime constant and hence keep the deterrence level constant; it would have the benefit, though, of reducing costs to the rest of society.There are some well-known objections to such a policy. One such objection deals with marginal deterrence: A convicted murderer serving a life sentence with no chance of parole in a jurisdiction which bans capital punishment has nothing to lose from killing a prison guard—there is no marginal deterrence to the commission of a more serious crime or any additional crime for that matter. In fact, so long as there remains any upper limit to the amount of punishment that can be inflicted upon a convicted criminal, the only ways to create some type of marginal deterrence are to reduce the punishments for less serious crimes, which will either reduce the deterrence of those less serious crimes, or alternatively to require the use of more of society's scarce resources to increase the probabilities of apprehension and conviction.It is possible to reduce this marginal deterrence problem, however, by practicing cruel and unusual punishment on perpetrators of serious crimes, i.e. by raising the limits of allowable punishment. Anecdotal evidence suggests this practice is followed unofficially with child molesters and killers of prison guards and hence provides some additional deterrence against these crimes.Despite the theoretical validity of this argument, our society has chosen to impose a constitutional ban on cruel and unusual punishment. Furthermore, over time we seem to have lowered the threshold of what is considered cruel and unusual. Following Dr. Pangloss, the concluding section of the paper examines why rational maximizers would choose to give up this additional potential deterrence. The explanations depend upon an assumed positive income elasticity of demand for humanitarianism or for insurance against the costs of punishing the innocent. While there are some reasons to accept the humanitarianism argument, the insurance argument seems more persuasive.     

宽严相济刑事政策的刑罚观依据

从古代社会到启蒙思想运动,再到古典犯罪学派、实证犯罪学派、犯罪社会学,人类社会关于刑罚目的与功能的刑罚观已经发生了深刻的变化。然而,长期以来,我们对刑罚的认识却存在不小的偏差,往往将刑罚作为专政的一种工具,将刑罚视为政治问题,过于强调通过刑罚手段来严厉打击“敌人”或者严重犯罪分子,而不是将刑罚视为一种科学。宽严相济刑事政策的提出,是我国在对传统刑罚观进行反思的基础上,认肯现代刑罚观的必然结果。     

Justifying Punishment: A Response to Douglas Husak

In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials.     

刑事政策的精神:惩治犯罪与促进社会发展的统一

惩治犯罪与促进社会发展的统一是刑事政策的精神。新中国成立以来,随着情势变迁,刑事政策审时而变。新中国的基本刑事政策经历了由"镇压与宽大相结合"至"惩办与宽大相结合",再至"宽严相济"的演进历程。镇压与宽大相结合刑事政策,主要针对反革命分子适用,其精神内涵是:镇压反革命,巩固新政权;恢复国民经济,保障三大改造。惩办与宽大相结合刑事政策则适用于所有的犯罪分子,并成为新中国第一部刑法典的立法指针,其精神内涵是:惩治各类犯罪,保障改革开放。在构建"和谐社会"的语境下,宽严相济的刑事政策应运而生,其精神内涵是:打击犯罪与保障人权相统一;以宽济严,构建和谐社会。三种基本刑事政策,不仅仅是在时间上的接续,而且就具体精神内涵而言,后者都是对前者的传承与超越,但总体精神都是惩治犯罪与促进社会发展相统一。     

“It’s the politics, stupid!”. The politicization of anti-corruption in Italy

This article aims to analyze the relationship between judicial activism against political corruption and electoral accountability. The judiciary plays a pivotal role in enforcing anti-corruption legislation, and, in many countries, courts have moved closer and closer towards that kind of working. In the article, we analyze the conditions under which a judicial prosecution of corrupt practices can also lead to electoral punishment of political misconducts by voters, or to a failure of accountability mechanisms. The latter outcome is more likely to occur if judicial activism is politicized. The ‘politicization’ of anti-corruption initiatives is here defined as an increase in the polarization of opinions, interests, or values about judicial investigations and the extent to which this polarization is strategically advanced towards the political debate by parties, political leaders, and media. By crystallizing a new dimension of political conflict, political actors can negatively affect electoral accountability, diminishing the risk of electoral punishment. We study this phenomenon by analyzing the case of Italy, a country which has experienced high levels of politicization of anti-corruption. However, whether and to what extent anti-corruption policies can be politicized is a question open for many other countries that can take a similar path.     

‘Fear’ and ‘Hope’ in Graphic Fiction: The Schismatic Role of Law in an Australian Dystopian Comic

The rise in popularity in recent times of dystopian fiction (particularly among young adults) is reflective of contemporary anxieties about law: the inhumanity of judicial-coercive machinery; the influence of corporate power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. These dystopian texts often tell fear-inducing stories of law’s failure to protect; or of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. Indeed comics, with their visual and narrative intricacies, thrive on dystopia as a key vehicle for contributing to collective notions of fear and trembling about the future. Yet, at the same time, these texts also contain within them the blueprints for hope—the idea that with transformation, heroic intervention, and/or faith in ‘justice’, the law will ultimately prevail. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall (when manipulated and disrupted), AND as the key to enlivening humanity (when redeemed and restored). This article attempts to understand this schismatic role of law as presented in the recent dystopian comic book series From Above by Australian creator Craig Bruyn. In this series set in futuristic Melbourne, where law has given way to an unaccountable corporate rule, the social divide is made manifest by the absence of ‘order’, ‘law’ and ‘justice’ in certain segments of society, and yet hope in law’s return is ever-present. The paper will interrogate expectations of law and justice that is mediated through the complex interaction of fear and hope, and contextualise this within current contemporary anxieties.     

Representing legislative Rules as Code: Reducing the problems of ‘scaling up’

We propose an approach to analysing the nature of existing legal rules, particularly legislative rules, that regards legislation as fundamentally a set of related propositions. We propose a method for representing these rules, using a coding language developed for the project that uses a quasi-natural language representation. It enables the interpreter program for that coding language to process these rules so as to produce ‘consultations’ to determine the values of goals which the legislation is capable of determining, with dialogues and explanations generated ‘on the fly’.Progress that has been made in automating this coding process to create rules in that coding language directly from existing legislation, using a pre-processor program developed for the project. This can also be described as ‘scaling up’ the production of ‘Rules as Code’ or ‘Law as Code’. If successfully developed further this has potential to make a significant contribution toward realising the practical potential of Rules as Code.We conclude there is now evidence that these processes can be generalised (‘scaled up’) to deal with the conversion or production of large bodies of legislation, and that this has considerable value. The pre-processor software is evolving rapidly, in the variety of structural forms of legislation that it can convert into the coding language, and this work will continue.Based on this experience, we also demonstrate how the drafting of legislation could be changed so that appropriately drafted legislation is directly readable and understandable by humans and also directly usable by machines. To be effective, laws drafted in this way will need to be simultaneously authoritative legislative rules and code.     

Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization's initial response to the COVID-19 pandemic, a the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.     

‘Punishment’ in Non-custodial Sentences: A Critical Analysis

This paper reviews various uses of the concept of ‘punishment’ in relation to non-custodial sentences, including the frequently-made comparison between ‘punishment’ and ‘rehabilitation’. It concludes that ‘punishment’ has no stable meaning in respect of such sentences and, when utilised, often results in non-custodial penalties being found wanting by comparison with imprisonment. It is suggested that all sentences should be regarded as ‘punishments’, and that the creative development of community penalties will best be achieved by working with a threefold conceptualisation of reparation, rehabilitation and incapacitation, set within appropriate boundaries of proportionality.     

Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts.     

Local governance of safety and the normalization of behavior

In almost all West-European countries and large parts of the world the governance of public safety tops political priorities at both national and local level. We can observe a growing attention for public safety issues in our cities and streets, resulting in local communities and authorities that increasingly have the possibility to deal with these issues in a rather autonomous way. In this contribution, I discuss the local governance of safety through a critical analysis and reflection of inherent, new regulatory tools within an administrative or civil framework. In doing so, I focus on the precarious position of three specific categories, i.e., minors and youth, panhandlers and ‘potential’ drug users. This analysis starts off with and draws a parallel to broader social and political trends, which criminologists have described as the shift from a ‘post-crime’ to a ‘pre-crime’ society where pre-emptive logics, mechanisms of exclusion and the criminalization of behavior tend to prevail.     

A Special Youth Sanction

Under the label ‘youth sanction’ (ungdomssanktion) a new type of sentence for juvenile offenders has been enacted by a 2001 amendment to the Danish Penal Code. The study reported here is an analysis of the 55 sentences imposed over the first year. Widespread disparity and disproportionality in sentencing was found. Statutory requirements regarding the seriousness of the individual case have not in all instances been satisfactorily established. The emergence of the new sanction implies a considerable increase in the intensity of intervention. Being based on a revitalized treatment ideology, the new criminal sanction legitimizes a vast widening of the control measures directed against troubled youth, in particular such offenders who has another ethnic background than Danish. No comprehensive programme or coherent vision regarding treatment methods has been stipulated, and professionals are bewildered and in disagreement regarding such issues. Nothing indicates that the costly efforts will prove to be adequate as rehabilitative and crime preventive tools. The introduction of the youth sanction is part of a contemporary criminal policy agenda dominated by a broad political coalition with an urge to demonstrate ability and readiness to cope with juvenile street crime by employing more ‘consequent’ measures, involving tougher and swifter punishment combined with coerced rehabilitation.     

Political Liberalism, Ethos Justice, and Gender Equality

Susan Okin criticizes John Rawls’s ‘political liberalism’ because it does not apply principles of justice directly to gender relations within households. We explain how one can be a ‘political liberal feminist’ by distinguishing between two kinds of justice: the first we call ‘legitimacy justice’, conceptions of which apply to the ‘legally coercive structure’ of society; the second we call ‘ethos justice’, conceptions of which apply to citizens’ ‘non-coercive’ relations. We agree with Okin that a society in which most persons act in accordance with ‘gender equal’ ethos justice is morally superior to one in which most persons do not. A shared commitment to a particular conception of ethos justice, however, cannot be required by a conception of legitimacy justice. A political liberal feminist is committed to promoting gender equality with respect to both legitimacy justice and ethos justice, but recognizes that different means are necessary to do so.