Low fertility in premodern China: Positive,preventive or proactive behaviour?

There has taken place recently the re-emergence among specialists of Chinese population history of a debate that started in the 1980's. This debate deals with the reasons for relatively low Chinese fertility in the 19th and early 20th century, and focuses on the question of whether proactive behaviour or a low standard of living was responsible for the low fertility. In this article we summarize the debate and tackle two issues. First, we summarize the biological evidence for the relationship between food and fertility. It turns out that some studies support the existence of this relationship, while other authors contest it. Even if fertility and malnourishment are related, one has to prove that the Chinese population was poor enough to influence fertility negatively. Both contemporary writers and anthropometric studies oppose the recent revisionist view that Chinese fertility was not determined by positive checks. On both issues the debate is still unsettled. The article looks at the reasons for this and advocates a less polemical and more constructive approach.     

Corporate governance,property and democracy: a conceptual critique of shareholder ideology

Despite the resilience of national institutions and practices there are increasing signs that national systems of corporate governance are giving way to an idealized American model of shareholder activism and liquid equity markets. These pressures are ideologically backed by 'shareholderism', which consists of three claims: a prudential, a functional and a moral claim. The prudential one claims superior efficiency for shareholder control and market allocation of capital. The functional one bases its claim for shareholder control on the contribution of risk-carrying capital. The moral one is based on a liberal doctrine of ownership that grounds exclusive control rights in title-holders. This paper addresses the functional and moral claims. It argues that public equity markets do not contribute capital and that the Lockean conception of property is both untenable and morally reprehensible. Instead corporate democracy is proposed as a way to accommodate the conflicting claims of stakeholders. To do so an intelligent division of democratic labour is required. The paper ends with a sketch of such a model, through short outings to the real world of Dutch corporate governance.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Criminal Behavior: A Real Option Approach With an Application to Restricting Illegal Insider Trading

Traditionally, criminal behavior is analyzed within an expected utility framework. This paper offers an alternative model to analyze criminal behavior based on real option models. It is shown that all criminal decisions can be analyzed as real options, in a sense that they confer the possibility but not the obligation to commit a crime in the future. The criminal option model is a richer model compared to conventional economic models of crime, because it takes into account four additional variables. As such, the conventional economic analysis of crime is a special case of criminal option models. The criminal option model is then applied to the enforcement of illegal insider trading. Based on the six value-drivers of criminal options, an active management strategy can be developed for the criminal as well as for the legislator.     

Distributive Justice and the Allocation of Costs,Losses, and Profits

In an experimental study, participants read a scenario about five business partners who sold plants at a flea market. Each partner obtained a different outcome and still had to pay the costs of the partnership. Participants either had to indicate what they considered to be a fair distribution of the costs (given each individual partner's earnings) or what they considered to be a fair distribution of the net results (the total outcome minus the costs). The total outcome was either higher or lower than the costs (i.e., the enterprise resulted in a net profit or a net loss). The results indicate that fairness judgments are affected by the target of distribution. Negative outcomes are distributed differently than positive outcomes, and within the domain of negative outcomes, marked differences are observed between costs and net losses. The results are explained in terms of the differential salience of the distribution of the net result.     

Law as Information in the Era of Data‐Driven Agency

This contribution introduces the mathematical theory of information that ‘informs’ computer systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers to reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the face of the alternative grammar and alphabet of a data‐driven society. Instead of either embracing or rejecting the technological transitions that reconfigure the operations of the law, this article argues that lawyers should collaborate with the computer scientists that engineer and design the affordances of our new onlife world. This is crucial if we want to sustain democratic participation in law‐making, contestability of legal effect and transparency of how citizens may be manipulated by the invisible computational backbone of our rapidly and radically changing world.     

Rwanda’s involvement in Eastern DRC: A criminal real options approach

This paper applies an alternative model to analyze criminal behaviour by countries based on real option models. Criminal options incorporate a richer framework than traditional cost-benefit models and allow examining the optimal timing of a crime as criminals have the possibility but not the obligation to commit a crime in the near future. From the model, we show how criminal states can actively manage their criminal options. More importantly, we show how the international community can optimally intervene pro-actively, by reducing the incentives for criminal states to execute their criminal options. These novel insights are then applied to two episodes of criminal behaviour by Rwanda in the Democratic Republic of Congo (DRC): the massive killing of Hutu refugees by the Rwanda Patriotic Army (RPA) in late 1996-early 1997 and the illegal exploitation of Congolese resources from August 1998 onwards. This article describes and assesses these activities from this real option perspective.     

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.