Specters of Indigeneity in British‐Indian Migration, 1914

Colonial legal histories of indigeneity and British‐Indian migration have not often been placed in conversation with one another. This article pursues such a project by tracing indigeneity as a spectral presence that emerged with uneven regularity in juridico‐political conflicts over British‐Indian migration. Specifically, I focus on the 1914 journey of the Komagata Maru, a Japanese steamship carrying 376 Punjabi migrants that sailed from Hong Kong to Shanghai, Moji to Yokohama, and across the Pacific, eventually arriving in Vancouver, Canada. Crisscrossing continents and approaching law in its broadest sense, I explore three struggles over the ship and its passengers: a satirical cartoon published in the Hindi Punch (Bombay), a legal test case heard by the British Columbia Court of Appeal (Vancouver), and a public debate on the racial meanings of Imperial subjecthood that ensued among Indian middle‐class supporters of the ship and unfolded in English newspapers in various Indian cities. In each moment of struggle, I examine the changing conceptions of indigeneity that were strategically appropriated, never by indigenous peoples themselves or on their own terms, but by the Dominion of Canada and by British Indians, each deploying indigeneity to its own advantage and to achieve particular effects. Ultimately, this article considers the political and legal work that the spectral figure of indigeneity performed, the conceptions of time that underwrote its recurrence, and the temporalities that it sustained and called into question.     

Gender,Indigeneity, and the Criminal Courts: A Narrative Exploration of Women's Sentencing in Western Australia

Ethel Rosenberg's prison letters illustrate women's prison writing at a transitional point. Preceding her work are prison writings that focus on self-justification and autobiography; afterward come texts that assert the writer's pride and challenge the penal system and society. Rosenberg's correspondence includes elements of both traditional and contemporary women's prison literature. Along traditional lines, her letters focus on family matters and her own mental state as she attempts to adapt to imprisonment. In their outright assertions of pride in self and anger at perceived injustice, Rosenberg's letters point ahead to the writing of women inmates today.     

Narratives as the Cultural Context of Law

Law can be characterised as a highly specialized tool with strong social impact requiring social legitimization and acceptance. Law is also specific, abstract world. World that needs words to exist. To understand law and to share its content it is important to focus on narratives related to it. The article deals with the importance of narration in law as the consequence of discursive peculiarity of law and its dependence on the acceptance of societies. Law is culturally conditioned, and by means of narrative can combine the expectations of society concerning legitimation with legal rationality. The law cannot function exclusively as an abstract and formal structure nor an administrative apparatus, with own ways of legitimization or justification. Through social acceptance law gains its real form, but at the same time it is subordinated to cultural patterns. Changes in narratives change the law and then the real world. The article shows possible ways of analysis of narratives, narrative strategies and forms that are present in law.

     

Race and the Death Penalty

Abstract

Scholars have learned a great deal about race and the death penalty. Yet the field has limitations: (1) prior research focuses on African Americans and Hispanics but ignores Asian Americans; (2) researchers have not explored Donald Black's (1989) plan to eliminate discrimination called the “desocialization of law.” Black notes that jurors who do not know the race of the offender and victim cannot discriminate. Black then outlines proposals aimed at removing race information from trials, while still providing jurors with relevant legal information. We address both issues through an experiment in which mock jurors (N = 1,233 students) recommended a sentence in a capital murder trial consisting of four conditions: (1) Asian American-white; (2) white-Asian American; (3) African American-white; (4) race of offender and victim unknown. The results suggest that Asian Americans are treated the same as whites, while African Americans continue to suffer from discrimination. Here, we consider the potential role of social status in such outcomes. The results also suggest that African American offenders and unknown offenders face the same odds of a death sentence. Here, we consider two potential interpretations. On one hand, jurors in the unknown condition could have seen an African American offender and a white victim in their “mind's eye,” effectively merging the conditions. On the other hand, death sentences could be the same in the conditions for distinct reasons: Death sentences could be high in the unknown condition because of relational distance between the juror and offender, while death sentences could be high in the African American-white condition because of discrimination. We conclude by considering the theoretical and public policy implications of both the central findings.     

Narratives about privacy and forgetting in English law

This paper examines narratives about the right of privacy in the UK. It argues that until relatively recently the dominant narrative was one that associated privacy with celebrity claimants and media defendants. Other narratives, such as those concerned with digital privacy and data protection, did not feature as prominently. But changing technological and social contexts mean that these narratives are now understood to be of immense importance too. This paper explores these narratives against the backdrop of the European Commission's proposals for a ‘right to be forgotten’ (now relabelled a ‘right to erasure’), the subject-matter of this special issue, as well as the 2014 Google Spain judgment. The paper emphasises the importance of forgetting as an aspect of the right to privacy and argues that while the UK legislator and courts have been slow to give effect to erasure remedies, they must now start exploring the bounds of legal possibility in order to meet the challenges of the digital age.     

非虚构性及历史性:“论诗及事”诗话的叙事考察

叙事是论诗及事诗话的基本表述方式,此类诗话以非虚构叙事、小叙事和历史性叙事为主,与小说、传奇、野史等有很大不同,对事件细节、情节不作过多铺叙,呈现碎片化叙事特质,从见证者视角叙事。论诗及事诗话追忆诗事,记录古诗生长的语境及存在状态,诗话之事可将读者带至古诗产生时的历史空间,对古诗历史时空场景还原具有重要的价值和意义。阐释古诗若过于强调审美性、注重诗歌内部结构分析就容易造成脱离历史语境的误读,或作品阐释的自我封闭,或脱离文本的过度阐释。     

Race and the Construction of Evidence in Homicide Cases

Research that attempts to document racial or gender disparities in the criminal justice system inevitably paints a distorted picture if only one point in the criminal justice process is examined. For example, studies that look at who is sentenced to death among a group convicted of first-degree murder will miss exposure of biases that occur at earlier stages of the criminal justice process. In this paper, we looked at prosecutorial files on over 400 homicide cases from Caddo Parish, Louisiana (the Shreveport area). Results indicate that even after controlling for aggravating factors, cases with White female victims result in thicker files than other homicides, indicating more prosecutorial effort in attempting to secure convictions in such cases. This, in turn, was related to more severe sentencing of offenders convicted of killing whites and women. On the other hand, cases with black victims resulted in the thinnest case files and the least severe sentences.     

Narratives of criminal action and forensic psychology

Purpose. In commenting on Youngs and Canter's (2011) study, Ward (2011) raises concerns about offenders’ personal narratives and their link to self‐concepts and identity. His comments relate to explorations of personal life stories rather than the narratives of actual crimes that are the focus of Youngs and Canter's (2011) study. The elaboration of this different focus helps to allay many of Ward's (2011) concerns and reveals further possibilities for developing the narrative approach within forensic psychology. Methods. The focus on offenders’ accounts of a particular crime allows the development of a standard pro forma, the Narrative Role Questionnaire (NRQ), which deals with the roles a person thinks they played when committing a crime. These roles act as a summary of the criminal's offence narrative. Multivariate analysis of the NRQ clarifies the specific narrative themes explored by Youngs and Canter (2011) . Results. The examination of the components of the NRQ indicates that offence narratives encapsulate many psychological processes including thinking styles, self‐concepts, and affective components. This allows the four narrative themes identified by Youngs and Canter to provide the basis for rich hypotheses about the interaction between the dynamics of personal stories and identity. The four narratives of criminal action also offer a foundation for understanding the particular, detailed styles of offending action and the immediate, direct processes that act to instigate and shape these. Conclusion. These developments in our understanding of offence narratives generate fruitful research questions that bridge the concerns of investigative and correctional applications of narrative theory.     

The Role of Narratives in Legal Education

The significance of narrative as the primary form of human communication forms the basis of this paper. Following a brief consideration of the natural inter-relationship between law and narrative, the author goes on to discuss the more specific application of a narrative approach to legal scholarship and legal education. The paper sets out the findings of a practical research project that took as its inspiration James Boyd White’s portrayal of the law student as a creative and imaginative thinker, and Martha Nussbaum’s claim that it is through the power of ‘narrative imagination’ that we gain a broader appreciation and understanding of humanity. It explains how a group of law students participated in ‘the Narrative Research Project’ at the University of Leicester; participating in story-telling seminars and creating their own fictional narratives from appellate case reports. It describes the students’ reaction to the project as heartening in the sense that they became more aware of the significant role that human actors play in legal proceedings, but it also expresses doubts over the extent to which such an approach can, by itself, cultivate humanity in the law school.     

Race and the decision making of juries

The relationship between race and jury decision making is a controversial topic that has received increased attention in recent years. While public and media discourse has focused on anecdotal evidence in the form of high‐profile cases, legal researchers have considered a wide range of empirical questions including: To what extent does the race of a defendant affect the verdict tendencies of juries? Is this influence of race comparable for jurors of different races? In what ways does a jury's racial composition affect its verdict and deliberations? The present review examines both experimental and archival investigations of these issues. Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes. This is a conclusion with important practical as well as theoretical implications when it comes to ongoing debates regarding jury representativeness, how to optimize jury performance, jury nullification and racial disparities in the administration of capital punishment.     

Race and the apprehension of inmate misconduct

Race differences in the apprehension of inmate misconduct were examined within a medium security Federal Correctional Institution. Significant race differences were found such that disproportionately more conduct reports (shots) were written on black than white inmates. Explanations of these differences are given. Considering three sets of findings, it was concluded that the probability of racial bias affecting criminal justice decision making will vary according to the status of that decision point on two dimensions: (1) the amount of discretion afforded the decision maker, and (2) the extent to which the decision maker is held accountable for this decision. Therefore, racial bias would be expected to exert its greatest impact upon decision points which allow considerable discretion and which prossess minimal accountability.     

The Human Genome Diversity Project: The Politics of Patents at the Intersection of Race, Religion, and Research Ethics

The patenting of human genetic materials provokes wide-ranging misgivings about the appropriate place and scope of intellectual property protections. The issues implicated range from anti-competitive practices in the market, the imposition of limits on biomedical research, increasing costs for health care, research ethics, potentials for racial discrimination, and various violations of human rights. Exploring controversies around the Human Genome Diversity Project, patents on genetic sequences, and patents on higher life forms such as the so-called "Harvard mouse," the authors find that North American patent policy has developed in the absence of necessary political debate. They link this de-politicization to the hegemony of neo-liberal principles most fully demonstrated by the incorporation of intellectual property under international trade negotiations. They point, however, to the recent emergence and increasing audibility of new social movements that seek to reposition issues of intellectual property in larger debates about human rights, distributional equalities, and social justice.     

Race and the probability of pleading guilty

The legal ramifications of pleading guilty and findings of an interdependence between pleading guilty and sentence severity suggest that the guilty plea decision is a significent turning point in case processing. The present research examines the variables affecting the probability of pleading guilty. The first analysis involves estimating a single probit equation of main effects of variables previously found to be related to pleading guilty. A second analysis is conducted estimating the same equation separately for black defendants and white defendants. Findings from the first part of the analysis indicate that physical evidence, number of charges, and confessing to the crime during police/prosecutor interrogation increase the probability of pleading guilty, whereas the number of witnesses, use of a weapon, and offenses carrying a minimum penalty of 5 years in custody with no maximum prison term decrease the probability of pleading guilty. Findings from the second analysis indicate that the effect of marital status, prior record of felony convictions, type of counsel, number of charges, and use of a weapon on the probability of pleading guilty varies by defendant's race. The research concludes by offering several competing explanations of these findings in hope of stimulating further research on the variables affecting the route of case disposition in felony processing.     

中华法系的百年历史叙事

回顾中国现代法学的世纪历程,中华法系的历史叙事主要在进化论、民族论和法治论三种语境中展开。不同语境中的法史学者,通过将中华法系与其他法系相比较,揭示出了彼此有别的中华法系之历史面貌。在进化论语境中,中华法系因其古.老而落后,丧失了型构现实生活秩序的生命力,需整体性地予以批判和否定。在民族论语境中,中华法系因其系统性、连续性和民族性而独具特色,整理、发掘、重述其历史谱系,既有助于增强民族文化自信力,也为重建“新中华法系”提供了重要的精神前提。在法治论语境中,中华法系以其“治乱之道”和“良法善治”的血缘伦理身份内涵表明,在前现代社会中法律不可能获得型构社会生活秩序的权威地位。法制现代化是不同语境下中华法系之历史叙事的共同追求,中华法系研究的百年学术史,实质上是一部追求法治文明的中国现代精神史。     

鲁迅疾病叙事与中国现代生命伦理的发生

鲁迅文学中的疾病叙事不仅体现着鲁迅的医学背景、人格影响,而且灌注着鲁迅自己对生命的伦理观念。这些观念主要有三个方面的内容:一是主张安乐死,能医的就医,不能医的就帮助他死得没有痛苦;二是反对酷刑与虐杀,批判国民性中对科学的精神没有兴趣,而把聪明才智都挥洒在这种给被害人带来无穷而难忍的痛苦的虐杀与酷刑上;三是尊重残疾者但反对滥施同情,体现出肉体之小与精神之大的辩证认知。鲁迅的这种生命伦理观念既是鲁迅自身疾病纠缠的生命体验的升华,也是科学精神与生命哲学互织的结晶。鲁迅在其一生中对生命伦理现代化的思考与践行,体现出的正是他对《新青年》催生最后觉悟之觉悟即伦理觉悟的启蒙方略的主动呼应。     

Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom

This article considers the role of emotion in the eighteenth-century courtroom. It discusses the work of judges and magistrates in constituting and upholding a ‘grand narrative’, which legitimized English criminal law. This grand narrative was inherently emotional, activating patriotism and love of justice, but also fear of punishment through the performance of ‘emotional labour’ from the judgment seat. However, while performing the majesty of the law, judges attempted to balance a number of complicating factors, such as the rise of sensibility, the role of the press, and their own emotions about criminal justice. The growing presence of professional counsel from the end of the century also complicated the emotional tenor of criminal trials. Moreover, the majesty of the law was undermined and even corrupted by the representation of trials and executions in the popular press. Far from viewing displays of emotion as inappropriate, it appears that many contemporaries held emotion to be an integral part of trial process, and of the majesty of the law.     

Late Modern Ambiguity and Gothic Narratives of Justice

This paper develops a Cultural Criminology of the Late Modern Gothic. It discusses how representations of criminal justice today are often framed by and narrated through a Gothic imagination. Often, and especially by those who have already noted its criminological significance, this trend is considered a cultural support for Punitive Populism and the demand for vindictive sanctions especially against ‘sensational’ offenders. Although such interpretations are partially valid they do not fully address the entire scope of the Late Modern Gothic—especially when it is invoked as a cultural support for transgression or resistance against the situated structures of (Late) Modernity. By discussing a number of recent media representations but particularly an episode from a popular TV serial, the paper indicates that the contemporary Gothic is now as much a source of subjective identification as it is an imagination of the cultural other: an identification with and not just against that which transcends cultural borders and the culturally ambiguous. Cultural Criminology is here employed to question assumptions that the ‘public mind’ is uniformly punitive and unable or unwilling to tolerate any form of criminal transgression. In responding to popular demands framed by the Gothic imagination, formal criminal justice interventions need not, therefore, necessarily assume a vindictive tone. A Humanistic Cultural Criminological approach to Late Modern Gothic transgressiveness can help reveal cultural complexities too easily ignored by conventional models of criminological analysis.