_Interpretation and Construction_ examines the interpretation and products of intentional human behavior, focusing primarily on issues in art, law, and everyday speech. Focuses on artistic interpretation, but also includes extended discussion of interpretation of the law and everyday speech and communication. Written by one of the leading theorists of interpretation. Theoretical discussions are consistently centered around examples for ease of comprehension.

_Interpretation and Construction _examines the interpretation and products of intentional human behavior, focusing primarily on issues in art, law, and everyday speech. Focuses on artistic interpretation, but also includes extended discussion of interpretation of the law and everyday speech and communication. Written by one of the leading theorists of interpretation. Theoretical discussions are consistently centered around examples for ease of comprehension.

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in (...) particular is radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

This chapter contains section titled: Objects of Legal Interpretation Utterance Model of Legal Interpretation How the Law Is Different from Art Digression: Indeterminacy in Art and the Law Aims of Legal Interpretation and Conceptions of the Law Precedent and Judicial Authority Considerations of Prudence, Morality, and Justice: Judicial Liberty A Constructivist Conception of Legal Interpretation An Alternative View: Dworkin's Constructivism The Relevance of Intention: Con and Pro Conclusion Notes.

The application of the death penalty for perpetrators of riddah by fuqaha is a problematic violation of human rights. This is because there is no good reason to show that the punishment for riddah is the death penalty. The existence of the hadith which is considered to be the legitimacy of riddah punishment turns out to be very different from the reality of its application in the history of Islamic criminal law. This article aims to answer academic anxiety about (...) the death penalty for perpetrators of riddah as a result of the ijtihad of fuqaha as well as to confirm the construction of its historical reality in state life. This article finds that some verses of the Qur’an and the hadith which are used as legal basis by fuqaha are only understood textually and treated as absolute theological verses and hadiths, but not based on historical evidence. The history of the application of criminal punishment during the time of the Prophet shows that there is no application of the death penalty to the perpetrators of riddah, except riddah which is followed by criminal acts. So it is not solely because of the act of riddah itself, but because of a greater crime against Islam. The implementation of the death penalty for the perpetrators of riddah which is based on textual interpretation of the hadith, thus has the potential to conflict with the principles of human rights and religious freedom which have been regulated in the Qur’an. Contribution: This study enriches perspectives on the meaning of riddah as one of the strategic issues in Islam and shows that a new interpretation of riddah has become an important idea to promote a peaceful and inclusive society and provide access to justice for all. (shrink)

Bringing together the latest work from leading scholars in this emerging and vibrant subfield of law, this book examines the philosophical issues that inform the intersection between law and neuroscience.

Law and ethics ; Criminal law -- Interpretation and construction.

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process (...) of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty, which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar. (shrink)

In print for the first time in over ten years, Act and Crime provides a unified account of the theory of action presupposed by both Anglo-American criminal law and the morality that underlies it. The book defends the view that human actions are always volitionally caused bodily movements and nothing else. The theory is used to illuminate three major problems in the drafting and the interpretation of criminal codes: 1) what the voluntary act requirement both does and (...) should require; 2) what complex descriptions of actions prohibited by criminal codes both do and should require ; and 3) when two actions are 'the same' for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book both contributes to the development of a coherent theory of action in philosophy, and it provides both legislators and judges a grounding in three of the most basic elements of criminal liability. (shrink)

This article aims at proposing the construct of living and working together in organizations as an interpretation and tool proposed in a Juvenile Criminal Mediation Service, in order to highlight how important it was as a turning point in activating the working group's reflexive function as far as their sense of belonging, otherness, culture of diversity, and work subject matter are concerned and start an important transformation process in the very service delivery. Our proposal finds its roots in (...) a follow-up experience regarding the aforementioned service, which has been taking place for almost three years. It was structured in three different phases: a research phase evaluating process and results of the activity that was carried out; a phase of monitoring the mediation practice; a research-action phase in a clinical perspective on the working group's operating mode. The leverage of living and working together in organizations is specifically proposed as far as this last working phase is concerned, las... (shrink)

International criminal law (ICL) has traditionally overlooked sexual and gender-based violence (SGBV) and struggles to understand it. Prosecutions have been largely inefficient and not reflective of gender harms. The Rome Statute requires interpreting SGBV as a social construction (article 7(3)), in consistency with international human rights law (IHRL) and without discrimination (article 21(3)). There is, however, little guidance to implement these approaches. This article argues that intersectionality, an IHRL-based approach that reveals compounded discrimination, is an efficient tool to interpret (...) SGBV and, therefore, should be integrated in ICL. The article traces the origins of intersectionality in feminism and its recognition by IHRL dealing with violence against women. It establishes the applicability of intersectionality in ICL that it demonstrates with a comparative analysis of the Lubanga and Ntaganda cases. The findings show that intersectionality suits ICL’s specific needs which allows labelling and explaining some of those contributions throughout the judicial process. (shrink)

Originally presented as the author's thesis, Bonn, 1978.

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books (...) does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

In this article I discuss the nature and sense of legal reasoning as reasonableness, i.e. as judgement and equilibrium between normativity and factuality, and as constant approximation between these two dimensions. By phrasing the intertwinement between legal hermeneutics and the nature and function of writing, the structure of the article is constructed so that the focus is on the changes currently occurring with the so-called ‘digital revolution’: in imagining a juridical system administrated through data analysis and algorithms, some contradictions emerge, (...) especially concerning the nature, sense and task of legal hermeneutics. The current shift of paradigm should be first of all addressed starting from the grammatological nature of the revolution at stake. Only from this perspective can the shift be entirely grasped and, at the same time, only from this perspective can the methodological conundrum be deconstructed. (shrink)

In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive (...) class='Hi'>criminal law. I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather (...) than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

The state's use of the threat, and imposition, of punishments to regulate conduct is thought (or at least said) by many to be legitimised by the idea that the criminal law's burdens only fall on those who are blameworthy for their conduct. However, the formal concept of 'blameworthiness' needs to be made substantive. This puts various ideas regarding the criminal law's person at the heart of debates about blame, guilt, and responsibility. How is the criminal law's person (...) constructed, by whom, and with what disciplinary norms? How is it threatened by new 'knowledge', and how do those threats play out amongst the various stakeholders who claim the criminal law's person as 'theirs'? To address these and cognate questions, this volume brings together an international group of academics to engage with the criminal law's person from a range of disciplinary perspectives. (shrink)

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable (...) subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination. (shrink)

My discussion will focus on Simester’s overall analysis of the “general part” of criminal law theory, setting aside the book’s rich and careful analyses of many specific topics. Quite rightly, in my view, Simester wishes to emphasize criminal law’s prohibitions, and their moral as well as legal importance. My criticism is that Simester runs together moral and legal categories in a way that distorts both. Simester grounds lawful punishment in a specific notion of moral culpability. In my view, (...) this moralized interpretation of the general part places the wrong sort of focus on defendants and edges victims from view. We make better sense of criminal responsibility if we focus on the state’s duty to uphold rights and to insist that no one get their way by force or fraud. This implies a more indirect concern with the moral failings that lead people to violate others’ rights. It also reminds us of an inherent danger of criminal law, one that has unfortunate echoes in the theoretical framing of the “general part”: how often it fails to do justice to victims. (shrink)

This paper explores Ronald Dworkin’s influential theory of constructive interpretation. It points out that this theory admits of two readings, which I call the “undemanding” and the “demanding” conceptions of constructive interpretation respectively. As I argue, Dworkin’s own presentation of the theory equivocates between these two conceptions, the former of which is utterly unproblematic, but the latter of which incorporates certain philosophical prejudices as to what it must mean for a practice to be purposive.

Despite Kant's explicit statement that every murderer must suffer death, there are at least four situations to be found in Kant's work in which the killing of a human being should not lead to the death penalty: when too many murderers are involved; when a mother kills her illegitimate child; when one duellist kills the other; when one person pushes another off a plank in order to save his life. This paper discusses these situation and concentrates on the last situation (...) - Kant's interpretation of the plank of Carneades – with an eye to what they learn us about Kant understanding of the law. Does Kant acknowledge a legal vacuum? In order to come to a conclusion, Kant's 'solution' of the plank is compared with those suggested by other authors, such as Cicero, Pufendorf and Lon Fuller in his famous 'speluncean explorers' case. (shrink)

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes (...) -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship. (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)

Recent case law on sexual violence crimes heard before the ad hoc international criminal tribunals and courts, that interpret them in connection with ethnic conflict, raises the question of which acts can be defined as sexual violence. The International Criminal Court, in the situation of Kenya, does not regard acts of forced nudity, forcible circumcision and penile amputation as sexual violence when they are motivated by ethnic prejudice and intended to demonstrate the cultural superiority of one tribe over (...) another. The Court argues that not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. This recent interpretation of what counts as sexual violence provides another example of the complicity of international criminal law institutions in the ongoing construction process of female subordination. The ICC, in the Kenya situation, implicitly confirms the mutilation of female agency by interpreting penile amputation as a kind of power game between males, and by instrumentalizing the male sexual organ as an indicator of masculinity and manhood. (shrink)

I describe how our understanding of some of the central principles long held dear by most criminal theorists may have to be interpreted in light of the need to devise lenient responses for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: whether informal can substitute for or count against the appropriate (...) state sanction; the significance of repeat offending for sentencing; whether punishment for culpable public wrongdoing has intrinsic value; and the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner. (shrink)

Despite Kant's explicit statement that every murderer must suffer death, there are at least four situations to be found in Kant's work in which the killing of a human being should not lead to the death penalty: when too many murderers are involved; when a mother kills her illegitimate child; when one duellist kills the other; when one person pushes another off a plank in order to save his life. This paper discusses these situation and concentrates on the last situation (...) - Kant's interpretation of the plank of Carneades – with an eye to what they learn us about Kant understanding of the law. Does Kant acknowledge a legal vacuum? In order to come to a conclusion, Kant's 'solution' of the plank is compared with those suggested by other authors, such as Cicero, Pufendorf and Lon Fuller in his famous 'speluncean explorers' case. (shrink)

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about (...) legal rules. The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. (shrink)

What did it mean to keep a secret in early medieval England? It was a period during which the experience of secrecy was intensely bound to the belief that God knew all human secrets, yet the secrets of God remained unknowable to human beings. In Bonds of Secrecy, Benjamin A. Saltzman argues that this double-edged conception of secrecy and divinity profoundly affected the way believers acted and thought as subjects under the law, as the devout within monasteries, and as readers (...) before books. One crucial way it did so was by forming an ethical relationship between the self and the world that was fundamentally different from its modern reflex. Whereas today the bearers of secrets might be judged for the consequences of their reticence or disclosure, Saltzman observes, in the early Middle Ages a person attempting to conceal a secret was judged for believing he or she could conceal it from God. In other words, to attempt to hide from God was to become ensnared in a serious sin, but to hide from the world while deliberately and humbly submitting to God's constant observation was often a hallmark of spiritual virtue. Looking to law codes and religious architecture, hagiographies and riddles, Bonds of Secrecy shows how legal and monastic institutions harnessed the pervasive and complex belief in God's omniscience to produce an intense culture of scrutiny and a radical ethics of secrecy founded on the individual's belief that nothing could be hidden from God. According to Saltzman, this ethics of secrecy not only informed early medieval notions of mental activity and ideas about the mind but also profoundly shaped the practices of literary interpretation in ways that can inform our own contemporary approaches to reading texts from the past. (shrink)

This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal (...) law is particularly significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today. (shrink)

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website ( https://tingshen.court.gov.cn/ ), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse has not been (...) thoroughly researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation. (shrink)

Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal connections (...) between them. Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law. (shrink)

The present article discusses the broadening of the concept of genocide in Lithuanian national criminal law with regard to the principle of nullum crimen sine lege. The broadened definition, which includes two groups, social and political raises serious problems when the national provisions on genocide are applied retroactively. However, in the case of Lithuania, such a broadening of the definition may be interpreted not as an introduction of distinct independent groups, but of groups that closely overlap with the groups (...) defined by the UN Genocide convention of 1948. The article suggests that potential problems with the principle of nullum crimen sine lege may be avoided by qualifying crimes against the Soviet regime as crimes against humanity. (shrink)

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After (...) identifying two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects. (shrink)

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international (...) legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions. (shrink)

Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the (...) nature of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to (...) the lawmaker. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I (...) believe that both approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)