THE PRIVATIZATION OF VIOLENCE*

Norbert Elias's (1939) work on “the civilizing process” highlighted the long‐term decline in violence within Western societies. A substantial amount of more recent anthropological and historical evidence suggests that violence has evolved not just quantitatively but qualitatively as well. In particular, the social characteristics of the parties to violence have changed over time. Drawing on Donald Black's (1976, 1993a) theoretical ideas on conflict management, the present paper proposes that as intimate social ties weakened and the state strengthened, collective and nonintimate forms of (nonpolitical) violence declined significantly. Consequently, violence increasingly became less public, more private. Pockets of residual public violence can, however, still be found within modern state societies. Privatization varies, then, across time and social space.     

The arts of refusal: tragic unreconciliation,pariah humour,and haunting laughter

ABSTRACT

This paper investigates Hannah Arendt’s writings on tragic unreconciliation and pariah humour as offering creative strategies for confronting the deadening of emotion that enables people to become reconciled to what they should refuse or resist. She offers a distinctive contribution to debates on reconciliation and justice, I suggest, by articulating a tragic approach to unreconciliation. Yet Arendt recognised that tragic accounts of violence can reinforce denial and resignation. In writings on the ‘hidden tradition’ of the ‘Jew as pariah,’ Arendt suggests that humour can be an important response to tragic accounts of political violence and a strategy for awakening an emotional response in those who cannot perceive tragedies to which they have become reconciled. As arts of refusal, tragic unreconciliation and pariah humour invoke and subvert the tragic imagination to reveal possibilities for solidarity, responsibility, and transformation that challenge problematic forms of reconciliation – reconciliation to one’s role as a participant in, or bystander to abuse, reconciliation as self-abnegating assimilation, and reconciliation as compromise, scapegoating, or denial.     

Gender,Culture and the Law: Approaches to ‘Honour Crimes’ in the UK

This article examines the debate on whether to analyse ‘honour crimes’ as gender-based violence, or as cultural tradition, and the effects of either stance on protection from and prevention of these crimes. In particular, the article argues that the categorisation of honour-related violence as primarily cultural ignores its position within the wider spectrum of gender violence, and may result in a number of unfortunate side-effects, including lesser protection of the rights of women within minority communities, and the stigmatisation of those communities. At the same time it is problematic to completely dismiss any cultural aspects of violence against women, and a nuanced approach is required which carefully balances the benefits and detriments of taking cultural factors into account. The article examines the issues within the context of the legal response to cases involving honour-related violence, arguing that although the judiciary has in a number of cases inclined towards viewing ‘honour’ as primarily cultural rather than patriarchal, in some cases they have begun to take a more gender-based or ‘mature multiculturalism’ approach.

德国近五十年刑事立法述评

自1969年德国刑法大改革至今的五十年间,德国的刑事立法活动非常频繁。在此期间,德国立法机关不但对《刑法典》总则犯罪论部分的规定进行了彻底的修订,而且针对犯罪的法律后果以及刑法分则乃至附属刑法中的诸多罪名进行了持续的改革,在恐怖主义犯罪、妨害公务犯罪、毒品犯罪以及保安监禁等领域尤其如此。整体而言,德国立法者在过往半个世纪中日趋侧重功能主义的积极刑事立法观,导致德国刑法逐步从传统法治国背景下的法益保护法和市民防御法转向以社会控制为主导的国家干预法和社会防卫法,造成了诸多难以与现有法律体系和学说理论相协调的象征性立法。我国应当从德国近五十年的刑事立法中吸收其先进经验,对其中的弊端也要引以为戒。     

Parenting Coordination In Cases Involving Intimate Partner Violence

Parenting Coordination is a “hybrid legal‐mental health role that combines assessment, education, case management, conflict management, dispute resolution and, often times, decision‐making functions (AFCC, 2019, https://www.afccnet.org/Portals/0/PublicDocuments/Guidelines%20for%20PC%20with%20Appendex.pdf?ver=2020-01-30-190220-990 ). This article addresses issues that arise when the case has allegations or findings of intimate partner violence (IPV). Considerations of the type of IPV, the severity, timing, perpetrator and effects on coparenting are discussed in the context of the parenting coordinator's role. Through screening and assessment, we differentiate the kinds of cases with the presence of IPV where a PC may be effective as opposed to other IPV cases that may not predict success for retaining a PC.     

仪式与暴力——论卡夫卡《在流放地》

卡夫卡的《在流放地》展示了新旧时代交替过程中,仪式与暴力的运行方式的变迁。在古旧的刑罚体系中,绘制仪、耙等工具以不同的功能在十二个小时的行刑仪式中展演暴力;而人则在仪式化的暴力下,被降级为动物性、工具性的存在,丧失反抗能力,臣服于暴力。作品中新指挥官上任后的新时代,仪式式微,权力空间从公共景观转向封闭场所,惩罚对象从肉体转向灵魂,暴力隐匿。但是,式微的仪式仍有着潜在的力量,暴力终会以某种形式复归。     

Soviet legacies,organized crime,and economic gangsterism: Russia, 1995–2010

In countries like Russia, where legal institutions providing political accountability and protection of property rights are weak, some elite actors accept the use of violence as a tool in political and economic competition. The intensity of this violent exposure may vary depending on the position the province had had in the Soviet administrative hierarchy. The higher the province's position before 1991, the greater the intensity of business violence one is likely to observe there in post-communist times, because the Soviet collapse left a more gaping power vacuum and lack of working informal rules in regions with limited presence of traditional criminal organizations. Post-Soviet entrepreneurs also often find it worthwhile to run for office or financially back certain candidates in order to secure a privileged status and the ability to interpret the law in their favor. Businessmen-candidates themselves and their financial backers behind the scenes may become exposed to competitive pressures resulting in violence during election years, because their competitors may find it hard to secure their position in power through the existing legal or informal non-violent means. To test whether Soviet legacies and Provincial elections indeed cause spikes in commerce-motivated violence, this project relies on an original dataset of more than 6000 attacks involving business interests in 74 regions of Russia, in 1991–2010. The results show that only legislative elections cause increases in violence while there is no firm evidence that executive polls have a similar effect.     

仪式与司法建构

文章从人类学的仪式理论与实践出发,引入仪式在日常生活和在司法领域的表现及作用,从而阐明仪式对立统一的存在价值。其次,从陪审制度这一现代司法仪式的阻断功能、辅助司法权威功能以及稳定司法功能进行全景式考察,阐述陪审制度借助仪式这一载体而体现的独特价值。     

La ñata contra el vidrio: urban violence and democratic governability in Argentina

The article argues that the increase in crime and urban violence in Argentina, especially in Buenos Aires, can be explained as an outcome of the interaction of four factors: the new social relations established by neoliberalism; the incapacity of the state to resolve the social conflicts which have arisen from these new social relations; the failure to democratise the security forces; and the exclusion of a sector of society from the rights of effective democratic citizenship. The increase in crime and urban violence is, thus, analysed as a problem of governability.     

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。