Criminal Law

Advancing International Criminal Law. The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

by Micaela Frulli

published in Journal of International Criminal Justice 6 (2008), 1033-1042

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced... more The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to
be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous
practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision
may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC
Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

"Police Museums in Latin America: Preface"

by Amy Chazkel

Contributing editor of "Forum: Police Museums in Latin America," in "Calling the Law into Question: Confronting the Illegal and Illicit in Public Arenas," Special Issue of the Radical History Review 113 (Spring 2012), 127-33.

Organized by the historian Amy Chazkel, who also provides the foreword, this forum gathers the work of three... more Organized by the historian Amy Chazkel, who also provides the foreword, this forum gathers the work of three historians of Latin America who have written extensively on the social history of crime, prompting them to reflect on a ubiquitous but little studied public history institution: the police museum. Alejandra Bronfman, Lila Caimari, and Robert Buffington, specialists in Cuba, Argentina, and Mexico, respectively, guide us through a selection of five police museums: one in Havana that played a crucial role in legal medicine and developing ideas about race during Cuba's Republican period but no longer exists; one in Buenos Aires that was founded as part of the early twentieth-century wave of police reform and modernization; and two in Mexico City and one in Guadalajara that mushroomed in the context of the Mexican police's public image hemorrhage of recent decades. This forum is a critical examination of not only objects on display but also the deeper logic of the categorizing schemes used in each museum. The official history of crime presented to the public, epitomized by police museums, provides a fascinating counterpoint to the contemporary academic history of crime in Latin America, which is remarkably diverse but converges on its use of historical analysis to challenge normative understandings of the law and the illicit. Far from “calling the law into question,” unsurprisingly, police museums naturalize and dehistoricize the criminal law. Yet this forum points toward ways in which further research on police museums can shed new light on how the public encounters the most problematic and controversial manifestations of state power.

Feindstrafrecht als regulative Idee

by Stefan Schick

'Sympathetic Exchange,' Adam Smith and Punishment

by Eric Miller

Ratio Juris, Vol. 9, No. 182, 1996

Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments. What he does say... more Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments. What he does say reveals that Smith viewed morality as dynamic, almost economic exchange.  Exposing the transactional nature of his theory of morality not only the operation of sympathy and moral judgment, but allows us to see a much closer link between the Theory of Moral Sentiments and the Wealth of Nations. Much remains to be said about this, as about his theory of justice. However, I do believe that to view Smith's moral theory from an "economic" perspective as a system of "sympathetic exchange" enables a more fruitful and cohesive account to be given of all aspects of his work, moral, economic and jurisprudential.

Drugs, Courts, and the New Penology

by Eric Miller

Published in Stanford Law & Policy Review, Vol. 20, No. 2, 2009

The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court’s... more The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court’s success is primarily achieved through suppressing the larger political debates surrounding drug policy through the therapeutic emphasis on a politics of personal responsibility. Bipartisan agreement has, however, come at the cost of precluding a discussion of the relation of drug crime to race and class in the urban setting, and ignoring the manner in which the state has exacerbated the problems of drug addiction for those caught in the criminal justice system. Perhaps courts are the wrong place for such policy discussions. Nonetheless, they remain essential to addressing the social causes of drug use in the inner cities. As an alternative, I have suggested reformulating the grand jury to take over some of the duties of the drug court judge. My goal is to generate empowered deliberative democracy at the local level, and mitigate some of the effects of the drug court’s therapeutic use of discipline, while including more partners in the discussion of urban drug policy. Few people have recognized that the drug court’s therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive vision of justice based on a version of positive liberty. In particular, the court’s rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to “determine someone to be...this rather than that.” Most critics who oppose the drug court’s methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. I suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one. Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.

Mixed Martial Arts: Lawful sport or unlawful spectacle?

by Liam Draper

I proposed this topic as a subject for dissertation in partial fulfilment of Bachelor of Laws degree in order to: (a)... more I proposed this topic as a subject for dissertation in partial fulfilment of Bachelor of Laws degree in order to: (a) assess whether sports require an Act of Parliament to be lawful; (b) assess whether or not sports require a governing or regulatory body in order to be lawful; (c) assess the legal status of sports without governing or regulatory bodies; (d) determine whether mixed martial arts fits is included into pre-existing legal exemptions; and (d) conclude on whether or not mixed martial arts under current Anglo-Welsh law is lawful.

I examine how sport is defined, how lawful sports are defined, the role of government regulation and the role of national governing bodies. I then address the history of MMA and how it developed abroad. I look at how the law in sport has been applied in relation to mixed martial arts and discuss arguments for why MMA should be lawful and why it should not. I then conclude on whether MMA is lawful and if it should it be.

Preserving Electronically Encoded Evidence

by Robert E. Davis

Davis, R. (2009). Preserving Electronically Encoded Evidence. ISACA Journal, 1. Retrived from: http://www.isaca.org/Journal/Past-Issues/2009/Volume-1/Documents/jpdf0901-preserving-elect.pdf

Seeking to preserve electronically encoded evidence implies that an incident or event has occurred requiring fact... more Seeking to preserve electronically encoded evidence implies that an incident or event has occurred requiring fact extrapolation for presentation, as proof of an irregularity or illegal act. Whether target data are in transit or at rest, it is critical that measures be in place to prevent the sought information from being destroyed, corrupted or becoming unavailable for forensic investigation.

Anticipating this potential scenario requires information security management to proactively construct incident response and forensic investigation capabilities, considering legal imperatives. Evidence at rest or in transit requires adequate security procedures to ensure evidential nonrepudiation. Consequently, procedures addressing the infrastructure and processes for incident handling should exist within the security response documentation inventory.

La Cybercrime: Appunti sugli atteggiamenti dell'Unione europea

by Manuel David Masseno

Seminário no Programa de Doutoramento "Comparazione e diritti della persona", na Università degli Studi di Salerno, Itália. 08/05/2012

Hegel and the Unified Theory of Punishment

by Thom Brooks

Published in Thom Brooks (ed.), Hegel's Philosophy of Right. Oxford: Blackwell, 2012.

Keywords:

politics, and Hegel's theory;Hegel's unified theory of punishment;Philosophy of Right;The... more Keywords:

politics, and Hegel's theory;Hegel's unified theory of punishment;Philosophy of Right;The Science of Logic;“hybrid” theories of punishment;PR, and punishment;crime and its punishment;British idealists, defending Hegel's idea;societal, justifying legal punishment
Summary

This chapter contains sections titled:

Introduction

The Key Idea

Punishment in the Philosophy of Right

The Reception amongst British Idealists

The Prospects of a Unified Theory of Punishment

Notes

References

Natural Law Internalism

by Thom Brooks

Published in Thom Brooks (ed.), Hegel's Philosophy of Right. Oxford: Blackwell, 2012, pp. 167-79.

Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law... more Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law internalism;classical natural law;natural law of standard of justice, on reason;“true law” universally and eternally true;modern natural law theories;Hegel's understanding of natural law;Hegel's legal philosophy, natural law;novel reinvention of natural law

Summary
This chapter contains sections titled:

Introduction

Classical Natural Law

Modern Natural Law

Hegel's Natural Law Internalism

Natural Law Internalism or Externalism?

Conclusion

Notes

References

Romantic and "Real Life" Relationships in Criminal Law: Reconstructing Red Flags for Dangerousness/Lethality

by Dr Judith Buckingham

Criminal law analyses of lethal violence towards female intimates are examined in three domestic violence settings.... more Criminal law analyses of lethal violence towards female intimates are examined in three domestic violence settings. These scenarios reveal internally inconsistent legal evaluations of domestic homicide and incongruity with internationally established patterns of risk. Law that is unresponsive to primary domestic violence "red flags" engenders injustice for battered victims and defendants and calls into question the quality and effectiveness of domestic violence victim protection in the courts.

Government Service Project April 21, 2012 Nicholas Woyshner

by Nicholas Woyshner

Why do we resist hard incompatibilism?

by Michael Corrado

One of the most difficult challenges for the “hard incompatibilist” is to deal with the overwhelming objections to the... more One of the most difficult challenges for the “hard incompatibilist” is to deal with the overwhelming objections to the therapeutic/incapacitative approach to crime control that seems to follow naturally from his theory.  See, for example, Pereboom’s Living without Free Will, Chapter 6.  Responding to this challenge requires the hard determinist (1) to find a way to distinguish between those who have traditionally been found responsible for their crimes and those who have been found not to be responsible; and (2) to justify the infliction of intentionally harsh treatment on at least some of those who fall into the first category.  I attempt to develop a theory that satisfies both those requirements.

Producing suspects: the politics of the national DNA database of England and Wales (NDNAD). A review of 'Genetic Policing. The Use of DNA in Criminal Investigations', by Robin Williams & Paul Johnson

by Victor Toom

Victor Toom (2010), BOOK REVIEW ‘Producing suspects: the politics of the national DNA database of England and Wales. A review of Genetic Policing. The Use of DNA in Criminal Investigations, by Robin Williams & Paul Johnson’, Science as Culture, 19(3): 387-391.

This is a review of Williams, R. and Johnson, P. (2008), Genetic Policing. The Use of DNA in Criminal Investigations,... more This is a review of Williams, R. and Johnson, P. (2008), Genetic Policing. The Use of DNA in Criminal Investigations, Cullompton, Devon: Willan Publishing, see http://www.amazon.co.uk/Genetic-Policing-Use-Criminal-Investigations/dp/1843922045

RESSENYA A Criminalización racista de los migrantes en Europa.(2010) Palidda, S. i JA Brandariz

by Cristina Fernández-Bessa

Movilidad bajo sospecha. El conveniente vínculo entre inmigración y criminalidad en las políticas migratorias de la Unión Europea

by Cristina Fernández-Bessa

Los efectos de la cultura de emergencia en la criminalización de los inmigrantes

by Cristina Fernández-Bessa

O psychologicznej reaktancji i jej możliwych implikacjach dla polityki prawa karnego [On psychological reactance and it’s possible implications for the policy of criminal law]

by Michał Dudek

Published in: „Czasopismo Prawa Karnego i Nauk Penalnych” ["Journal of Criminal Law and Penal Sciences"] 2011, no. 4, pp. 125-135. ISSN 1506-1817

Czy każda kultura zasługuje na obronę? Kilka wątpliwości dotyczących cultural defence i prawa karnego w dobie multikulturalizmu [Does every culture deserves a defence? Few queries concerning cultural defence and criminal law in the age of multiculturalism]

by Michał Dudek

Published in: „Archiwum Filozofii Prawa i Filozofii Społecznej” ["Archives for Philosophy of Law and Social Philosophy" Polish edition] 2011, no. 2 (3), pp. 47-60. ISSN 2082-3304

A Community Theory of Criminal Negligence

by Joshua Barton

Working Paper - First Draft Only