This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. -/- No one should be neutral in relation to cruelty. Eminently, cruelty in (...) criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences. -/- However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing. -/- What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it. (shrink)

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context. Criminal law discourse has become, and will continue to become, more international and comparative, (...) and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems. (shrink)

This chapter addresses the potential contributions of neuroscience to criminal justice decision-making and policy, with special emphasis on criminal responsibility. The central question is whether neuroscience is relevant to criminal justice. The general conclusion is that it is scarcely useful at present but may become more relevant as the science progresses. After explaining the meaning of criminal responsibility in use, the chapter speculates about the source of claims for the positive influence of neuroscience. The scientific status (...) of behavioral neuroscience and two radical challenges to responsibility neuroscience allegedly raises, determinism and the death of agency, are discussed next. Then, the specific relevance of neuroscience to criminal law and the use of neuroscience in criminal cases in the United States and abroad are addressed. The penultimate section points to some areas warranting modest optimism for the use of neuroscience in criminal justice. A brief conclusion follows. (shrink)

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by (...) what subjectivity, as an essential condition of culpability, is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea —remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such (...) legal measure. According to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

In the history of Lithuania during the period between the two world wars, the criminal law sources were received from Russia (Criminal Statute of 1903) and adapted for the requirements of those States, where the conditions of life were notably different from those in Lithuania. The Criminal Statute of 1903 was the main criminal law source in Lithuania until 1940. Prior to the second occupation—the return of the Soviets—tens of thousands of Lithuanian citizens fled to the (...) West, including a very large segment of the intelligentsia, university lecturers, professors and many lawyers. The lawyers in emigration were very socially active and founded a paper of law research—“Teisininkų žinios.” The article deals with the works and research of the emigration lawyers B. Nemickas, V. Vaitkevičius, P. Raulinaitis,V. Rastenis, D. Krivickas and others, in which they deal with the problem of Soviet criminal law. The lawyers analyse the sources of Soviet criminal law, which was the criminal law source in occupied Lithuania. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as (...) a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A New Look at Animal-to-Human Organ TransplantationCharles R. McCarthy (bio)The acute shortage of organs available for transplantation into human beings combined with a new scientific understanding of the immune systems of both humans and animals make it probable that animal-to-human solid organ transplants (xenografts) may soon be attempted at a frequency rate unknown in the past. 1 Optimism about successful animal-to-human organ transplantation is greater than at any previous (...) time. The creation of a reliable supply of animal organs appears to be technically feasible. At least five major transplant centers in the United States are currently considering plans to pursue xenotransplantation. Although, at the time of this writing, no federal guidelines prohibit animal-to-human organ transplantation, the institutions considering such programs are awaiting deliberations on the subject by the Institute of Medicine (IOM), the Food and Drug Administration (FDA), and the Department of Health and Human Services (DHHS).The demand for organs suitable for transplantation into human beings greatly exceeds the supply. According to the United Network for Organ Sharing (UNOS 1996a), approximately 44,000 patients in the United states awaited organ transplantation at the end of 1995. In 1994, more than 3,000 patients died while on the transplant waiting list, and the demand for transplantable organs increases annually (UNOS 1996b). The figures do not include the hundreds or perhaps thousands of patients who could profit from a transplant, but who do not meet the requirements of the UNOS waiting list. Even if efforts to persuade persons to donate organs are redoubled, and even if the consent to donate organs should become a legal presumption, there is little prospect of developing a sufficient supply of transplantable human organs to meet the growing demand.As technical and biological barriers to successful animal-to-human xenografts are lowered, the prospect of raising dedicated colonies of animals, genetically altered to reduce the chances that human hosts will reject organs derived from them, is being seriously discussed. 2 Such colonies do not exist at the present time. [End Page 183] However, if new techniques for animal-to-human transplantation prove successful, it is likely that animal colonies will be established to provide a ready and predictable supply of organs for transplantation to humans. Some believe that commercial investment in colonies of purpose-bred animals to serve as a source of transplantable organs is close at hand (Leventhal 1994).New drugs and new combinations of existing drugs have improved the chances of successful medical outcomes for patients who receive solid organ transplants. It is now recognized that serial application of immunosuppressive drugs can reduce the likelihood of both short- and long-term organ rejection (Makowka 1994). Improved understanding of both human and animal immune systems, insights into histocompatibility, new agents to control graft-versus-host disease, animal breeding programs for the production of transgenic animals, and improved surgical techniques have opened, as never before, the possibility of successful transfer of organs from animals to humans. Some rate the chances of good patient outcomes (usually measured in terms of time of patient survival) as high, others make more conservative predictions, but virtually all experts believe that the chances for successful human patient outcomes resulting from xenotransplantation are improved. Because many patients face immanent death unless their organs can be replaced, there can be little doubt that many humans will readily consent to xenotransplantation.History Suggests CautionDespite the advances in immunosuppression, the frequency of failure in past animal-to-human xenograft attempts should temper the optimism of the transplant community. To date, all efforts to prolong human life by implanting solid organs from animals into human recipients have failed. The first attempts at animal-to-human xenotransplantation early in the twentieth century resulted in the early death of all recipients (Neuhof 1923). More sophisticated efforts at xenotransplantation occurred in the late 1960s and early 1970s, a period when anti-rejection drugs began to make allografts more feasible. Although one human recipient of a xenograft survived for nine months (with poor quality of life), most patients died within a matter of minutes, hours, or a few days following the transplantation of organs from chimpanzees or baboons (Starzl... (shrink)

This, the twenty-seventh volume in the annual series of publications by the American Society for Political and Legal Philosophy, features a number of distinguised contributors addressing the topic of criminal justice. Part I considers "The Moral and Metaphysical Sources of the Criminal Law," with contributions by Michael S. Moore, Lawrence Rosen, and Martin Shapiro. The four chapters in Part II all relate, more or less directly, to the issue of retribution, with papers by Hugo Adam Bedau, Michael Davis, (...) Jeffrie G. Murphy, and R. B. Brandt. In the following part, Dennis F. Thompson, Christopher D. Stone, and Susan Wolf deal with the special problem of criminal responsibility in government-one of great importance in modern society. The fourth and final part, echoing the topic of NOMOS XXIV, Ethics, Economics, and the Law , addresses the economic theory of crime. The section includes contributions by Alvin K. Klevorick, Richard A. Posner, Jules L. Coleman, and Stephen J. Schulhofer. A valuable bibiography on criminal justice by Andrew C. Blanar concludes this volume of NOMOS. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the (...) history of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

The nature and relationships between Law and State -- Law making, its sources and the role of State -- Law, legal systems, and legal families : synchronizing in the Globalized World -- Fundamental legal concepts : the distinctive features of law -- Constitutional law : the Supreme Law of the land -- Criminal law : State's authority in defining and penalizing crimes -- Torts : making people responsible & civilized -- Civil law and proceedings : public and private law (...) -- Law for doing business : the role of state and market -- Justice : the goal of political society -- The Rule of Law : foundation of modern political society -- Human rights and the state : grounds for personal and institutional relationships -- International trade : the centerpiece of growth and international relations -- Law, Globalization and international relations. (shrink)

The article attempts to answer the following questions: What criminal law, if any, is applied in outer space when a crime is committed there? How will the issues of demarcation of criminal jurisdiction be resolved? Who and how will investigate such crimes? Which international or national institution will decide the issue of criminal prosecution and application of sanctions for crimes in space? Basing on the analysis of the sources of space and international law, it was concluded that (...) today there is no detailed procedure for investigating and bringing to criminal responsibility for committing a crime in space. There is also no international legal act that would establish a list of space criminal offenses. To solve existing problems, it is suggested to adopt the Convention on Criminal Liability for Space Crimes and to create a Space Criminal Statute (code). The article also claims that the creation of a World Space Union on regulating the commercial space activities will help in solving many issues in the field of research. (shrink)

The tradition of international criminal tribunals which started with the Nuremberg and Tokyo tribunals was returned with the International Criminal Tribunal for the former Yugoslavia. As a result of the bloody wars in the territory of the former Yugoslavia in the 1990s, the Security Council of the United Nations decided to establish the ICTY as an ad hoc tribunal, that was approved by the resolutions 808 and 827. The main purpose of the paper is to highlight the features (...) of the ICTY during its mandate from 1993 to 2017. For the realization of this research are used qualitative methods, based on the bibliography that is related with international criminal law, with special emphasis with the activities of international criminal tribunals. Furthermore, some data are also collected from the credible internet sources, which have valuable information about the procedures of the ICTY and for the International Residual Mechanism for Criminal Tribunals. The results of the study demonstrate that during its mandate, the ICTY was accompanied with a lot of successes which distinguish it from the other international criminal tribunals. At the same time, the ICTY has also a lot of failures, which have come as a result of various political influences within it. The conclusions of this paper aim to increase knowledge about the activity of the ICTY, by offering important information for its establishment and organs, and for its main successes and failures. (shrink)

Criminal liability of legal entities was legitimized in the Republic of Lithuania eight years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that the extension of the concept of criminal offense subject has received considerable attention of Lithuanian scientists. It was obvious that this penal law novel would cause many problems and, surely, it has become a reason of (...) many doubts in the judicial practice. However, despite the fact that a fairly broad scientific analysis of the topic under consideration has been made, none of the Lithuanian authors has ever addressed the issue regarding the sources of the criminal liability of legal entities. (shrink)

RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de normas. (...) No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom. (shrink)

This book addresses current practices in customary law. It includes contributions by scholars from various legal systems (the USA, France, Israel, Canada et cetera), who examine the current impacts of customary law on various aspects of private law, constitutional law, business law, international law and criminal law. In addition, the book expands the traditional concept of the rule of law, and argues that lawyers should not narrowly focus on statutory law, but should instead pay more attention to the impact (...) of practices on "real legal life." It states that the observation of practices calls for a stronger focus on usage, customs and traditions in our legal systems - the idea being not to replace statutory law, but to complement it with customary observations. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it (...) by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

With the principle of tour de force, we refer to the use of the power of moral legality, the strength of statutes, and the fairness of judgments. A quantum force of moral legality and legal morality serves as an imperative force in the implementation of fair criminal justice, as well as in the prevention of future victims across the globe. Contrary to positivist ideas, the simple notion of morality contains within itself the very essence of international criminal norms. (...) If the source of morality did not exist in the structure of our criminal justice, we could no longer call it criminal justice and would instead have to call it criminal revenge. Beyond the moral essence of international criminal justice, we also challenge the hidden illegality and immorality of certain attitudes. This is done in order to prevent acts which violate human rights law and criminal justice provisions. The codes of international human rights law cannot properly function without the comprehensive nature of morality which elevates the moral virtue of international criminal justice and strengthens the tour de force. One may observe that the principle of the tour de force of the moral virtue within the system of international criminal justice loses its legal power when governments attempt to justify their unjust decisions. This is the main reason why the major potential value of the tour de force of the moral virtue of human rights law and international criminal justice is not as strong as it should be. In order to achieve a vision of the tour de force of moral virtue, we need to establish a devoted influential ethical vision of the truth beyond political tradition. An unparalleled philosophical piece of literature for libraries. (shrink)

The last decade of the Qing dynasty and Republican period saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists. These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil and (...) class='Hi'>criminal law, new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals. If, as Roger Berkowitz writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence in positivistic terms, ultimately using new conceptions of science and social science to identify its place within a new ordering of modern knowledge. (shrink)

This book is a survey of how law, language and translation overlap with concepts, crimes and conflicts. It is a transdisciplinary survey exploring the dynamics of colonialism and the globalization of crime. Concepts and conflicts are used here to mean 'conflicting interpretations' engendering real conflicts. Beginning with theoretical issues and hermeneutics in chapter 2, the study moves on to definitions and applications in chapter 3, introducing cattle stealing as a comparative theme and global case study in chapter 4. Cattle stealing (...) is also known in English as 'rustling, duffing, raiding, stock theft, lifting and predatorial larceny.' Crime and punishment are differently perceived depending on cultures and legal systems: 'Captain Starlight' was a legendary 'duffer'; in India 'lifting' a sacred cow is a sacrilegious act. Following the globalization of crime, chapter 5 deals with human rights, ethnic cleansing and genocide. International treaties in translation set the scene for two world wars. Introducing 'unequal treaties' (e.g. Hong Kong), chapter 6 highlights disasters caused by treaties in translation. Cases feature American Indians (the 'trail of broken treaties'), Maoris (Treaty of Waitangi) and East Africa (Treaty of Wuchale). (shrink)

What obligations do global actors have to prevent terrorism? Is consent required to create an international obligation, or does the correctness of its goals ground its legitimacy? In this paper, I consider these questions with respect to a subset of international law often overlooked: anti-money laundering and combating the financing of terrorism . AML/CFT comprises peaceful response to violence and terrorism, making it a significant component of international justice and diplomacy. First, I present the current legal framework for AML/CFT institutions (...) and identify two conflicting sources of justification: objective value and consent. The fix for this problem, I argue, does not come from either component alone. Objective value cannot provide the sole source of justification because it cannot settle the choice between multiple competing norms that would achieve the same objective goods were we to follow them . Consent cannot provide the sole source of justification (‘the const.. (shrink)

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications (...) of offences? The sixth volume in the series offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering the justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrongdoing, the sources of wrongdoing, why wrongdoing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Individualization of Crime in Medieval Canon LawVirpi Mäkinen and Heikki PihlajamäkiIn The Mourning of Christ (c. 1305, fresco at Cappella dell'Arena, Padua, Italy), Giotto di Bondone (c. 1267-1337) depicts the Virgin Mary embracing Christ for the last time after he has been taken down from the cross. Whereas his predecessors in the devotional Byzantine tradition concentrated on flat, still figures, Giotto emphasizes their humanity and individuality. The grief (...) on the Virgin's face is touching and convincing but in a slightly different way than the sorrow experienced by St. John or the other accompanying figures. Even the ten angels following the scene seem to grieve for the Redeemer in their own personal way. The individuality of Giotto's figures may not seem much if we compare it with the seventeenth-century Flemish masters. Giotto's Virgin and her company still show a restraint in their grief which does not seem entirely natural. In late medieval art, however, Giotto's approach was fresh and new, reflecting a trend toward individualization which was not peculiar merely to art but was taking over many other areas of late medieval life as well. Philosophy, theology, and law—the medieval scientiae—were all putting increasing emphasis on the rights and responsibilities of the individual.Nor does this trend leave criminal law and the law of evidence untouched. The medieval development of law was just as revolutionary as the development of other branches of knowledge. Starting in early twelfth-century Bologna, the Corpus Iuris Civilis became an object of systematic academic research and teaching for the first time in history. The development of canon law was perhaps even more striking. Positive, enacted law first became not only an object of academic studies but also an instrument of social engineering in the domain of church law. The hierarchical structure of the worldwide Catholic Church was built and run in conjunction with positive, enacted legislation.1 [End Page 525] The development of criminal law was just as innovative as the changes that took place in other branches of law, with canon lawyers taking the lead. Aspiring for universal power and competing for it with secular rulers, the Church was in need of an efficient system to control disobedient priests and monks and suppress heretical movements.2 The traditional system of criminal control was clearly not sufficient. Canon law, making use of the contemporary trend toward increased individualization in theology, philosophy, and Roman law, was developed to meet the church's need to master the situation.One of the most important and influential developments in thirteenth-century criminal law concerned the individual's criminal intention and responsibility. Before the change criminal responsibility was mainly based on the consequences of a crime. The canon lawyers began to determine different modes of subjective responsibility. In the law of criminal evidence the individual was also shifted from the margins to the center of attention. Earlier criminal evidence had been produced from sources external to the individuality of the defendant, such as oaths, compurgators, and ordeals. In the thirteenth century and with the development of the so-called statutory or legal theory of proof, increasing attention was paid to the stories of both the defendant (in the form of confessions) and the witnesses. The development of criminal law and criminal procedure in the thirteenth and fourteenth centuries can be understood in the context of the simultaneous trend toward individualization that took place in moral philosophy and theology as well as in canon law.3 These connections are not the only way of understanding the modernization of canon criminal law, for the prevailing view sees the transformation in conjunction with the twelfth-century hierarchization and centralization of church bureaucracy. The particular form that the criminal law and law of proof assumed in these changes did not arise out of a vacuum but, however, has to be understood in relation to the neighboring fields of thought.The Human Will and the Individual in Medieval Moral PhilosophyThe primus motor of medieval philosophy, Aristotelianism, encountered its first competing theories in the thirteenth century. One of the most far-reaching ideas concerning human psychology and behavior, developed by the Franciscans... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Feminist Studies 46, no. 2. © 2020 by Feminist Studies, Inc. 489 Anna Romina Guevarra and Maya Arcilla The Source of Actual Terror: The Philippine Macho-Fascist Duterte  What is JUSTICE with the violence you’ve waged  What is FREEDOM? Our people are encaged  What is JUSTICE with the violence you’ve waged?  What is FREEDOM? Our people are encaged  We have nothing to lose—nothing but our (...) chains  We have nothing to lose—nothing but our chains  Ang tao, ang bayan—ngayon ay lumalaban  Ngayon ay lumalaban—ang tao ang bayan 1  We will, we will oust you!  We will, we will oust you! —Lyrics of a chant at a Chicago protest rally, July 8, 20202 On July 8, 2020, in front of the Philippine Consulate of Chicago, a group of activists representing multiple transnational organizations committed to the pursuit of democracy, participated in a Global Day of Action against an Anti-Terrorism Law (ATL) passed in the Philippines five days earlier. This particular rally was led by fierce student and community organizers and workers who loudly proclaimed their opposition to President Rodrigo Duterte’s misogynistic and fascist measures. The epigraph 1. The people, the nation—today they fight / Today they fight—the people, the nation. 2. Song written by Charmaine Balisalisa. 490 Anna Romina Guevarra and Maya Arcilla above captures the lyrics of one young activist’s chant directed at Duterte and choreographed to the tune of Queen’s “We will Rock You.” People followed her steps and gestures rhythmically and in unison, accompanying her chant with sounds from a gangsa (gong), bells, a skateboard tapping the ground, and an empty bucket. There have been multiple protests denouncing Duterte since he assumed power in 2016, but on this particular day, the sense of outrage and urgency was especially palpable in the face of this new law aimed at suppressing dissent. This legislation marked a high point in Duterte’s efforts to exert authoritarian control, and it is significant that opposition to his regime has taken on a specifically feminist character. The Philippines Anti-Terrorism Act of 2020 (Republic Act No. 11479), signed into law on July 3, 2020, amends the Philippines Human Security Act of 2007 by expanding the government’s power and scope for defining what constitutes “terrorism.” It consolidates power through the creation of an Anti-Terrorism Council (ATC) appointed by the President and empowered to act without oversight from the judiciary or legislature. The ATC can order mass arrests without warrants and detain individuals without due process for the mere suspicion of being involved in “terrorist” activities. This Law violates the Philippine Constitution’s Bill of Rights by eliminating free speech, violating the people’s right to privacy, and criminalizing individuals on suspicion of wrongdoing. As the law stipulates, anyone involved in “creating an atmosphere and spreading a message of fear” and “provoking or influencing by intimidation the government or any of its international organizations” will be construed as inciting terrorism. Indeed, this law will continue to erode democratic governance in the country, with some labeling it a “stealth declaration of martial law.”3 As US Congressional Representative Jan Schakowsky (D-IL) noted at the press conference she convened on July 15 to publicly call for the Anti-Terrorism Law’s repeal, “this law represents a new weapon in the administration’s campaign to suppress dissent and will worsen attacks on ordinary people.” 3. Jodesz Gavilan, “‘Stealth Declaration of Martial Law’: Rights Groups Slam Duterte, Anti-Terror Law,” Rappler, July 3, 2020, https://rappler.com/nation /human-rights-groups-statements-duterte-signing-anti-terror-law. Anna Romina Guevarra and Maya Arcilla 491 “A Timeline of Terror”: From “Pride is a Protest” and #JusticeForFabelPineda to #HandsOffGabriela4 A number of prominent feminists and queer rights activists have been targeted under President Duterte in the lead up to the passing of the ATL. On June 26, twenty LGBTQ activists representing Bahaghari, an LGBTQ+ rights organization in the Philippines, were arrested at a Pride rally. These protestors, referred to as the “Pride 20,” were speaking out against the ATL and were immediately arrested.5 A few days later, fifteen-year-old Fabel Pineda from San Juan Ilocos Sur was gunned... (shrink)

Ideal for anyone involved in the study of criminal justice, this book acquaints students with the philosophical concepts upon which ethical theory is based. It applies these ideas to specific issues and dilemmas within the criminal justice system. Its ultimate goal is to acquaint students with basic concepts of ethics in criminal justice and to train the mind to solve moral issues independently. The Ethical Foundations of Criminal Justice offers a comprehensive definition of ethics, and elucidates (...) its unique language and logic. The book explores the major ethical theories, with extensive discussion of authorities like Kant, Aristotle, Mill, and Hobbes. Chapters investigate normative ethics, teleological theories, deontological theories, and the alternative theories of ethics. The author exhibits the practice of these theories in actual matters of rights, the law, and the behavior of the courts. This book addresses ethics in the context of civil liability, police corruption, and abuse of police power, and includes numerous case studies and references to other relevant works. Criminal justice majors, criminology and law school students, and even police academy cadets will find this text an invaluable source of information both for academic studies and real-world applications. (shrink)

Bd. 1. 17. und 18. Jahrhundert (Text 1-21) -- Bd. 2. 19. und 20. Jahrhundert (Text 22-41).

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international), and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs in many subject areas, with (...) specific structures: commercial, environmental, human rights, humanitarian, financial, criminal, and labor law contribute to the formation of postnational law with different modes of functioning, different actors, and different sources of law that should be understood as a new complexity of law. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances under which a (...) mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

Recent events have highlighted large-scale systemic racial disparities in U.S. criminal justice based on race and other demographic characteristics. Although criminological datasets are used to study and document the extent of such disparities, they often lack key information, including arrestees’ racial identification. As AI technologies are increasingly used by criminal justice agencies to make predictions about outcomes in bail, policing, and other decision-making, a growing literature suggests that the current implementation of these systems may perpetuate racial inequalities. In (...) this paper, we argue that AI technologies should be investigated to understand how they recognize racial categories and whether they can be harnessed to fill missing race data. By bridging this gap, we can work towards better understanding racial inequalities in a wide range of contexts, most notably criminal justice. Using a multidisciplinary perspective, we rethink the design and methodology used in facial processing technology (FPT) based on supervised deep learning model (DLM) image classification. By modifying standard FPT pipelines to tackle multiple sources of DLM bias, we propose an experimental methodology based on ethical AI principles to generate binary (Black and White) racial categories using mugshots. We go beyond simply reporting DLM accuracies and address fundamental issues such as generalizability and interpretability by using a “self-auditing” approach. First, we evaluate the inference performances of 42 fine-tuned DLMs using unseen test images from the same dataset but subject to varying data augmentations. Next, to interpret and validate our methodological approach, we apply gradient-based saliency maps to assess the consistency of facial region relevance and attribution. Finally, drawing upon insights from three areas (computer science, sociology, and law), we investigate the efficacy of our DLM-based method as a tool for detecting racial inequalities in criminal justice. (shrink)

This volume provides a comprehensive analysis of the history, development and other legal aspects relating to International Medical Law and covers issues arising from not only the physician-patient relationship, but also with many wider juridical relations involved in the broader field of medical care in the international arena.00After a general introduction, the book examines the evolution of medical law in different civilizations that existed all over the world. It systematically describes the sources of this law from conventions, treaties along with (...) discussing the important role played by the courts, international institutions and other bodies related to the medical field. The comprehensive coverage includes public health law, international spread and prevention of diseases. This volume covers medical ethics and clinical ethics; considerations to facets of the medical professionals and patients relationship such as rights and responsibilities of the physicians, beneficence, consent, privacy, rights of patients and risk management. Also covered are issues of international concern like medical criminal activities, human and drug trafficking, trade in human organs, human medical research, as well as matters dealing with bio-technology in relation to bio-safety, bio-security, bio-genetics, bio-ethics, and the role of medical personnel in armed conflicts. (shrink)

This volume fills that gap and offers teachers in criminal justice ethics and law enforcement practitioners a rich selection of materials that have emerged in ...

This article describes the creation of a lightweight ontology of European Union (EU) criminal procedural rights in judicial cooperation. The ontology is intended to help legal practitioners understand the precise contextual meaning of terms as well as helping to inform the creation of a rule ontology of criminal procedural rights in judicial cooperation. In particular, we started from the problem that directives sometimes do not contain articles dedicated to definitions. This issue provided us with an opportunity to explore (...) a phenomenon typically neglected in the construction of domain-specific legal ontologies. Whether classical definitions are present or absent, laws and legal sources in general are typically peppered with a number of hidden definitions (in the sense that they are not clearly marked out as such) as well as incomplete definitions, which may nevertheless help legal practitioners (and legal reasoning systems) to reason on the basis of analogy or teleology. In this article we describe the theoretical basis for building an analogical lightweight ontology in the framework of an EU project called _CrossJustice_. We present our methodology for collecting the data, extracting the data fields and creating the ontology with WebProtégé, followed by our conclusions and ideas for future work. (shrink)

Resumen: El presente artículo revisa los usos de la figura del testigo en dos novelas chilenas de reciente publicación: La dimensión desconocida de Nona Fernández y Monte Maravilla de Miguel Lafferte, ambos relatos cuyas tramas están basadas en casos, lugares y personajes históricos reales relacionados con violaciones a los derechos humanos en Chile durante la dictadura pinochetista. En ambos casos, la figura del testigo es compleja e intrincada, ya sea porque es un victimario arrepentido, una niña que se convertirá en (...) la narradora del futuro o un fantasma que resulta ser real. De paso, y a la luz del testigo como figura articuladora común tanto para el derecho como para la literatura, el artículo quiere reflexionar acerca de las posibilidades de los procesos judiciales, en tanto narrativas, como fuentes de memoria colectiva para dar cuenta del horror. El rol del testigo resulta clave en ambos campos discursivos: mientras en los procesos judiciales el testigo es el sujeto de la enunciación del testimonio y, con ello, elemento de prueba en la determinación de responsabilidades, en la literatura el testigo tiene implicancias tanto narratológicas como éticas importantes, las que le proporcionan una riqueza al testimonio que lo vuelven una forma eficaz de memoria que más que contar lo sucedido, se acerca a mostrarlo.: This article reviews how the witness figure has been used in two chilean novels that have been recently published: La dimensión desconocida, from Nona Fernández and Monte Maravilla, from Miguel Lafferte. Both script plots are based in real cases, places and historical characters, related to Pinochet´s dictatorship. They present a complex and intrincate witness figure, through the form a regretful torturer, a girl who will be the future´s narrator or a ghost that happens to be real. Meanwhile, in light of the witness understood as an common articulating figure for the law, as well as for literature, the article wants to reflect on judicial processes posibilities, while narrative, as colective memory sources that can be held accountable for the horror. The witness role turns out to be essential in both discourse fields: meanwhile in judicial procesess the witness is the subject of the testimony enunciation and, as such, an evidence element for criminal liabilities determination, in literature, the witness has important narrative as well as ethics implications, wich give such richness to the testimony, that it becomes an effective way of memory that not only narrates what happened, it closes to show it. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the (...) human rights pro-pounded was never adopted. Even at the level of the International Court of Justice, its failure to include an ethical modality in the way it interprets treaties generally, and human rights treaties in particular, can leave it floundering to present any consistent framework for its own human rights decision-making. The article then presents a philosophical theory to justify the human rights that are recognized, based on an objective criterion that can be developed to assist courts in deciding conflicts of rights cases. Especially with respect to state domes-tic courts, the International Court of Justice can serve as a model to be emulated were it to adopt this theoretical framework for future hu-man rights decision-making. (shrink)

Is there a major international crime that the general public has never heard of or even thought about? The answer to this question might be surprising—it is the illicit art trade. The purpose of this article is to analyse the criminal aspect of the global art trade with a special focus on the region of South East Asia. In the first part of the paper, which acts as a backdrop for the rest of the article, the author explains the (...) history and general issues regarding the trade of cultural artefacts, briefly explaining the stages in the illicit antiquities trade, with a special focus on the question of international law regulations, of which he provides a critical overview. The second and third parts of the paper are devoted to a more profound analysis of the antiquities journey from illicit to licit. In the second part of the paper the author provides a case study of the first part of the voyage of Cambodian, Vietnamese and Indian antiquities, i.e. from the source country to the port of first shipment, examining the places and the middlemen they pass on their way. The third part of the paper is devoted to the analysis of legal provisions regulating the art trade in Hong Kong—a global art hub—notably the ‘market overt exception’, which allows buyers in good faith to keep the illicitly obtained cultural objects in spite of any claims made by the previous owners. In the fourth part of the paper the author shows why restitution of looted antiquities is so difficult, analysing a number of successful and unsuccessful attempts. The concluding part of the paper is devoted to the author’s critical overview of the various attempts and suggestions on the curtailing of the illicit international art trade. In the coda the author provides a case study of the journey undertaken by Cambodian antiquities. (shrink)

This paper considers the African communal ethic of Ubuntu as it is understood in the South African context. Its background and context and the various interpretations of this lived ethic in society and academia will be explored. According to Ubuntu, what is good is constituted by how one relates to others (affirming others, empathising, etc.). It is not an ethic that is purely governed by laws and the outcomes of actions. This paper considers the detrimental effect of gangsterism on prisoners’ (...) personal and social development in South African prisons and illustrates how the solidarity and identity of prisoners is merely an illusion that misguidedly resembles communal harmony or Ubuntu. Specifically, after pointing out how indigenous values in South Africa tend to prescribe honouring harmonious relationships, this paper will reveal how this approach to morality affects the way one understands prison conditions, prison relations and criminal justice. It advances that the values of Ubuntu have the potential to aid in prisoner rehabilitation and help prisoners stand against gang life in prison. This paper will suggest that the harmony found in Ubuntu has implications different from gang conformity. Lacking the space to systematically defend harmony as a fundamental value, it nonetheless urges theorists not to disregard it when considering prison transformation in South Africa. The intention of this study is not to demonstrate that Ubuntu is superior to the more popular Western moral theories in South Africa, but rather to tease out the implications of one plausible interpretation of Ubuntu and apply it to prison communities in South Africa. (shrink)

Criminal law as public law -- Criminal law as public law -- Criminal law as public law -- Mass incarceration and the theory of punishment -- Reasons to criminalize -- Formalism and pragmatism in criminal procedure -- Responsibility without resentment.

While the importance of Consent has been discussed widely over the last few decades, interest in its study has received renewed attention in recent years, particularly regarding medical treatment, clinical research and sexual acts. The Routledge Handbook of the Ethics of Consent is an outstanding reference source to this exciting subject and the first collection of its kind. Comprising over thirty chapters by a team of international contributors the Handbook is divided into five main parts: General Questions Normative Ethics Legal (...) Theory Medical Ethics Political Philosophy ¿ Within these sections central issues, debates and problems are examined, including: the nature and normative importance of consent, paternalism, exploitation and coercion, privacy, sexual consent, consent and criminal law, informed consent, organ donation, clinical research, and consent theory of political obligation and authority. ¿ The Routledge Handbook of the Ethics of Consent is essential reading for students and researchers in moral theory, applied ethics, medical ethics, philosophy of law and political philosophy. This volume will also be very useful for those in related fields, such as political science, law, medicine and social science. (shrink)

POLICE ETHICS – Abstract Mark Lauchs -/- Police are an essential part of the justice system. They are the frontline actors in keeping the peace, social stability and cohesion. Thus good governance relies on honest policing. However, there will always be at least a small group of corrupt police officers, even though Australians are culturally averse to corruption (Khatri, Tsang, & Begley, 2006). There have been many cases where the allegations of police corruption have reached to the highest levels of (...) a state police force (Blanch, 1982) and, in the case of the Fitzgerald Inquiry (Fitzgerald, 1989), ended in a commissioner being convicted of corruption. -/- Any public official who places their own interests before those of the public have corrupted a system in which they are supposed to act as agents of the public, will undermine the good governance of a society (Lauchs, 2007). Police officers attract offers of corruption because of their ability to enforce or ignore the law. Police who are unethical or in financial stress are vulnerable to offers of illicit payments. Longstanding arrangements of corruption within a police branch can lead to a corruption network between police and criminals. Organised police corruption constitutes “social behaviour, conducted in groups within organisations, that is powerful enough to override the officer’s oath of office, personal conscience, departmental regulations and criminal laws.” (Punch, 2000) it is an even greater threat to the community because the damage done has more impact than the sum of the individual acts of corruption. This chapter will discuss the types of police corruption and focus on the organisation as the source of core police culture. -/- . (shrink)

Firearms were associated with 30, 136 deaths in the United States in 2003. Most guns are initially sold to the public through a network of retail dealers. Licensed firearm dealers are an important source of guns for criminals and gun traffickers. Just one percent of licensed dealers were responsible for more than half of all guns traced to crime. Federal law makes it difficult for ATF to inspect and revoke the licenses of problem gun dealers. State licensing systems, however, are (...) a greatly under-explored opportunity for firearm dealer oversight. We identify and categorize these state systems to identify opportunities for interventions to prevent problem dealers from supplying guns to criminals, juveniles, or gun traffickers. Just seventeen states license gun dealers. Twenty-three states permit routine inspections of dealers but only two mandate that those inspections occur on a regular basis. Twenty-six states impose record-keeping requirements for gun sales. Only thirteen states require some form of store security measures to minimize firearm theft. We conclude with recommendations for a comprehensive system of state licensing and oversight of gun dealers. Our findings can be useful for the coalition of more than fifty U.S. mayors that recently announced it would work together to combat illegal gun trafficking. (shrink)

For any profession, establishing codes of ethics that are both practically relevant and up to date is an ongoing challenge. Law enforcement is no exception to this as agencies are faced with an evolving modern environment. With changes in technology, types of policing, and sources of societal conflict there is a potential array of new or evolving ethical considerations that confront the profession. Attempts to distill and prescribe law enforcement ethics at the international level have resulted in the creation of (...) the “Law Enforcement Code of Conduct” of the International Association of Chiefs of Police and the “Code of Conduct for Law Enforcement Officials” of the United Nations. However, both these codes were created decades ago, so they do not cover some of the more contemporary ethical issues that have arisen. This article compares the content of the IACP and UN codes and identifies a range of ethical issues either absent or insufficiently addressed. Normative themes and issues are organized around the following topics: difficulties in applying the codes, human rights and the use of force, misconduct and integrity, and enforcement and accountability. (shrink)

Central to any understanding of archaic Roman criminal law is the trial, as recorded by Livy, of Horatius for killing his sister. It is not just that the case raises so many legal issues; the jurisdiction of the father and of the king, the institution of a separate state procedure with two judges , the right of appeal to the people, the scope of the crime of perduellio and of parricidium, murder, and the use of sacral punishment. But also, (...) on the ability to determine how accurate for the period of King Tullus Hostilius is this account of law and legal procedure will depend our wider appreciation of the reliability of the sources. It must be admitted that almost all modern scholars regard Livy's account as quite untrustworthy. (shrink)

The usage of metaphor in languages for specific purposes has been in the focus of interest of cognitive linguistics for years, especially after Lakoff and Johnson published their famous book “Metaphors We Live by” in 1980. Inspired by that book, the author strives to prove that metaphor was not only intensely present in the history of law but also that it pervades the language of contemporary legal theory and practice. Terms like _injury of law, the burden of evidence, soft laws, (...) hard laws,_ etc. are so often used by lawyers in their professional communication that they are hardly recognizable as metaphors. In the theoretical part, the terms _conceptual metaphor_ and _lexical metaphor_, as well as _the source domain_ and _the target domain of the metaphor_ are defined. Accordingly, conceptual metaphor and lexical metaphor are interpreted from the perspective of the language of law. As an introduction to the discussion on metaphoric terms in the field of law, a number of metaphors is presented and discussed from the point of view of legal history, as the metaphoric and other poetic expressions were recognized as the features of legalese back in the early seventeenth century. In the main part, the author presents and discusses the most common conceptual metaphors in connection with the terms _law, justice, court,_ and the types of metaphors typically used in specific branches of law as criminal law, company law, and contract law. The empirical part of the paper is focused on two research tasks. Firstly, metaphors occurring in selected Legal English textbooks are explored and discussed by using a qualitative and a quantitative approach, and secondly, metaphoric terms and phrases of the EU Law are excerpted from the Treaty Establishing the European Community (Consolidated version 2002), the main task being to establish the frequency of metaphors in this relatively young branch of law and the types of conceptual metaphors they belong to. In the closing part, conclusions on similarities and differences in the use of metaphor between two different types of legal texts are drawn with specific reference to the frequency, lexical structures, and typology of conceptual metaphors in the field of law. (shrink)

This is a reprint of a book first published by Little, Brown in 1978. George Fletcher is working on a new edition, which will be published by Oxford in three volumes, the first of which is scheduled to appear in January of 2001. Rethinking Criminal Law is still perhaps the most influential and often cited theoretical work on American criminal law. This reprint will keep this classic work available until the new edition can be published.

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing (...) legal theory, some of which are explored in this essay. (shrink)

As a practising lawyer and judge, it is the insights gained from Stephen's own experience that give an added practical dimension to this work. As well as his accounts of the history of the branches of the law, Stephen gives several fascinating analyses of famous trials, and explores the relation of madness to crime and the relation of law to ethics, physiology, and mental philosophy. His discussion also includes the subjects of criminal responsibility, offences against the state, the (...) class='Hi'>criminal jurisdiction of the Privy Council, libel, Indian criminal law and offences against religion. (shrink)

Written by leading philosophers and lawyers from the United States and the United Kingdom, this collection of original essays offers new insights into the doctrines that make up the general part of the criminal law. It sheds theoretical light on the diversity and unity of the general part and advances our understanding of such key issues as criminalisation, omissions, voluntary actions, knowledge, belief, reckelssness, duress, self-defence, entrapment and officially-induced mistake of law.

The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface (...) between criminal law and public health brings together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, in order to examine the theoretical and practical implications of using criminal law to improve public health. (shrink)